HIGH COURT OF JUDICATURE FOR RAJASTHAN
\nBENCH AT JAIPUR
\nS.B. Civil Writ Petition No. 2915\/2019
\n1. Niharika Jain W\/o Shri Andesh Jain, Aged About 39 Years,
\nR\/o Sawan, Shiv Marg, Banswara-327001
\n2. Ashok Jain S\/o Shri Madan Lal Jain, Aged About 59 Years,
\nR\/o Sawan, Shiv Marg, Banswara-327001
\n3. Smt. Someshwari Jain W\/o Shri Ashok Jain, Aged About
\n58 Years, R\/o Sawan, Shiv Marg, Banswara-327001
\n4. Smt. Sheela Devi Jain W\/o Shri Vinod Kumar Jain, Aged
\nAbout 48 Years, R\/o Sawan, Shiv Marg, Banswara-327001
\n5. Motiya Dodiyar, S\/o Shri Wesiya Bheel, Aged About 56
\nYears, R\/o Village Borda Tehsil Ghantol, Distt. Banswara-
\n327021
\n—-Petitioners
\nVersus
\n1. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n2. Deputy Commissioner (Benami Prohibition) Jaipur And
\nInitiating Officer, Office At Room No. 250, New Central
\nRevenue Building, Income Tax Office, Statue Circle, Jaipur
\n3. Adjudicating Authority, The Prohibition Of Benami
\nProperty Transaction Act 1988, Office At, Room No. 26,
\n4Th Floor, Jeevan Deep Building, Parliament Street, New
\nDelhi-110001
\n—-Respondents
\nConnected With
\nS.B. Civil Writ Petition No. 15978\/2017
\n1. M\/s Manglam Build Developers Limited (a registered
\nCompanies registered under the Companies Act, 1956)
\nthrough its Director, Shri Rambabu Agarwal son of Shri
\nMadan Lal Agarwal, resident of H-55, Jhakhreshwar Marg,
\nBanipark, Jaipur
\n2. Shri Rambabu Agarwal Son Of Shri Madan Lal Agarwal,
\nResident Of H-55, Jhakhreshwar Marg, Banipark, Jaipur
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(2 of 160) [CW-2915\/2019]
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 19132\/2017
\nSmt. Pallavi Mishra Wife Of Sh. Abhishek Mishra, Resident Of A-
\n801, Auram Apartment, Tilak Marg, C-Scheme, Jaipur.
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner Benami Prohibition, Rajasthan And
\nInitiating Officer, Prohibition Of Benami Transa, Ncrb
\nBuilding, Income Tax Office, Statute Circle, Jaipur.
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 21751\/2017
\n1. M\/s Amar Pratap Developers Private Limited, A-21, Sadul
\nGanj, Bikaner through its Director Shri Ashok Kumar Modi
\nson of Hanuman Prasad Modi, R\/o A-21, Sadul Ganj,
\nBikaner, at present resident of Room No. 3, 3rd Floor,
\nMadhav Plaza, District Shopping Centre, Sahakar Marg,
\nJaipur.
\n2. Ashok Kumar Modi son of Hanuman Prasad Modi, resident
\nof A- 21, Sadul Ganj, Bikaner, at present resident of
\nRoom No. 3, 3rd Floor, Madhav Plaza, District Shopping
\nCenter, Sahakar Marg, Jaipur.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(3 of 160) [CW-2915\/2019]
\nS.B. Civil Writ Petition No. 9162\/2018
\n1. Dev Kishan Acharya S\/o Sh. V.c. Acharya, R\/o 3-H-13,
\n14, R.C. Vyas Colony, Bhilwara.
\n2. Smt. Kiran Acharya, W\/o Shri Dev Kishan Acharya, R\/o 3-
\nH-13, 14, R.C. Vyas Colony, Bhilwara.
\n3. Shri Mohan Lal S\/o Sh. Ganesh Raigar, R\/o 3-H-13, 14,
\nR.C. Vyas Colony, Bhilwara.
\n4. Jai Ram S\/o Sh. Ram Singh, R\/o 3-H-13, 14, R.C. Vyas
\nColony, Bhilwara.
\n5. Smt. Antar Bai W\/o Shri Jain Ram, R\/o 3-H-13, 14, R.C.
\nVyas Colony, Bhilwara.
\n—-Petitioners
\nVersus
\n1. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n2. Dy. Commissioner Of Income Tax Benami Transaction And
\nInitiating Officer Under The Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur.
\n3. Additional Commissioner Of Income Tax (BP) Jaipur, Room
\nNo. 239, New Central Revenue Building, Income Tax
\nOffice, Statue Circle, Jaipur.
\n—-Respondents
\nS.B. Civil Writ Petition No. 10852\/2018
\n1. M\/s Epic Vyapaar Pvt Limited, 3rd Floor Madhav Plaza,
\nDistrict Shopping Center Sahakar Marg, Jaipur,
\n(Registered Office at Darpam Appartment, 19\/1\/A,
\nMohanlal Bahalwala Road, 3rd Floor, Bally, Howrah)
\nthrough its Director Shri Avinash Modi son of Arun Kumar
\nModi, resident of A-21, Sadul Ganj, Bikaner, at Present
\nresident of Room No. 3, 3rd Floor, Madhav Plaza, District
\nShopping Center, Sahakar Marg, Jaipur.
\n2. Shri Avinash Modi son of Arun Kumar Modi, resident of A-
\n21, Sadul Ganj, Bikaner, at present resident Of Room No.
\n3, 3rd Floor, Madhav Plaza, District Shopping Center,
\nSahakar Marg, Jaipur.
\n—-Petitioners
\nVersus
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(4 of 160) [CW-2915\/2019]
\n1. Dy. Commissioner Of Income Tax Benami Transaction
\nAnd Initiating Officer Under The Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur.
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 10853\/2018
\n1. M\/s Avijit Agro Private Limited, Room No. 2, 3rd Floor
\nMadhav Plaza District Shoping Center, Sahakar Jaipur,
\nthrough its Director Shri Ashok Kumar Modi son of
\nHanuman Prasad Modi, resident of A-21, Sadul Ganj,
\nBikaner, at present resident of Room No. 3, 3rd Floor,
\nMadhav Plaza, District Shopping Center, Sahakar Marg,
\nJaipur.
\n2. Ashok Kumar Modi Son Of Hanuman Prasad Modi,
\nResident Of A-21, Sadul Ganj, Bikaner, At Present
\nresident of Room No. 3, 3rd Floor, Madhav Plaza, District
\nShopping Center, Sahakar Marg, Jaipur.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner Of Income Tax Benami Transaction
\nAnd Initiating Officer Under The Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur.
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government of India, New Delhi.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 10868\/2018
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(5 of 160) [CW-2915\/2019]
\nSuman Devi Wife of Shri Pradeep Kumar, resident of Karni Pura
\nRoad, Uttar Mohalla, Danta Ramgarh Sikar (Raj.)
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner Of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act, 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur.
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 11295\/2018
\n1. M\/s Vibhuti Integrated Finance Private Limited, 3rd Floor
\nMadhav Plaza District Shopping Centre, Sahakar Marg,
\nOpp. Near J.P. Phatak, Jaipur, through its Director Shri
\nAvinash Modi son of Shri Arun Kumar Modi, resident of A-
\n21, Sadul Ganj, Bikaner, at present resident of room no.
\n3, 3rd Floor, Madhav Plaza, District Shopping Center,
\nSahakar Marg, Jaipur.
\n2. Shri Avinash Modi Son Of Shri Arun Kumar Modi, resident
\nof A-21, Sadul Ganj, Bikaner, at present resident of Room
\nNo. 3, 3rd Floor, Madhav Plaza, District Shopping Center,
\nSahakar Marg, Jaipur.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority, Under the Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4th Floor,
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(6 of 160) [CW-2915\/2019]
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 11371\/2018
\n1. M\/s Amar Pratap Developers Private Limited, A-21, Sadul
\nGanj, Bikaner through its Director Shri Ashok Kumar Modi
\nson of Hanuman Prasad Modi, resident of A-21, Sadul
\nGanj, Bikaner, at present resident of Room No. 3, 3rd
\nFloor, Madhav Plaza, District Shopping Center, Sahakar
\nMarg, Jaipur.
\n2. Ashok Kumar Modi Son Of Hanuman Prasad Modi,
\nresident of A-21, Sadul Ganj, Bikaner, at present resident
\nof Room No. 3, 3rd Floor, Madhav Plaza, District Shopping
\nCenter, Sahakar Marg, Jaipur.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India through its secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 11511\/2018
\n1. M\/s Natraj Finlease Private Limited, 3rd Floor, Madhav
\nPlaza, District Shopping Center, Sahakar Marg, Opp. Near
\nJ.P. Phatak, Jaipur through its Director Shri Ashok Kumar
\nModi son of Hanuman Prasad Modi, resident of A-21,
\nSadul Ganj, Bikaner, At Present Resident of Room No. 3,
\n3rd Floor, Madhav Plaza, District Shopping Center, Sahakar
\nMarg, Jaipur.
\n2. Ashok Kumar Modi Son Of Hanuman Prasad Modi,
\nResident Of A-21, Sadul Ganj, Bikaner, At Present
\nResident Of Room No. 3, 3rd Floor, Madhav Plaza, District
\nShopping Center, Sahakar Marg, Jaipur.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(7 of 160) [CW-2915\/2019]
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 11948\/2018
\n1. St. Wilfred Education Society, Sector 10, Meera Marg,
\nMansarover, Jaipur Through Its Secretary Shri Keshav
\nGupta S\/o Shri Mahesh Kumar Gupta.
\n2. Adarsh Gyan Vidhalya Samiti, Badaya Chamber, Film
\nColony, Jaipur Through Its Secretary Shri Suresh Kumar
\nS\/o Shri Gopal Das Badaya
\n—-Petitioners
\nVersus
\n1. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n2. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n3. Additional Commissioner Of Income Tax Bp Jaipur, Room
\nNo. 239, New Central Revenue Building, Income Tax
\nOffice, Statute Circle, Jaipur.
\n—-Respondents
\nS.B. Civil Writ Petition No. 12580\/2018
\nJaspal Singh Son of Jangir Singh Bawari, Resident Of Chak 28
\nKYD, Bariyanwali, Tehasil Khajuwala, District Bikaner
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(8 of 160) [CW-2915\/2019]
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Room No.26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 12613\/2018
\n1. Shri Raghav Trading Corporation, A-12, Karni Nagar,
\nPawanpuri, Bikaner through its Partner Shri Anil Asopa
\nSon of Shri Shyam Sundar Asopa, resident of Plot No.
\n3,4,5, Flat No. 301, Platinum, Chandra Kala Colony,
\nDungarpura, Paniki Tankiwali Gali,tonk Road, Jaipur
\n2. Shri Anil Asopa Son Of Shri Shyam Sundar Asopa,
\nResident Of Plot No. 3,4,5, Flat No. 301, Platinum,
\nChandra Kala Colony, Dungarpura, Paniki Tankiwali Gali,
\nTonk Road, Jaipur
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi
\n3. Adjudicating Authority, under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 12617\/2018
\n1. M\/s Naman Buildcon, A-12, Karni Nagar, Pawanpuri,
\nBikaner Through Its Partner Shri Vinit Asopa S\/o Shri
\nGirija Shankar Asopa R\/o Plot No. 3,4,5 Flat No. 301,
\nPlatinum, Chandra Kala Colony, Durgapura, Pani Ki
\nTankiwali Gali, Tonk Road, Jaipur.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(9 of 160) [CW-2915\/2019]
\n2. Shri Vinit Asopa S\/o Shri Girija Shankar Asopa, R\/o Plot
\nNo. 3,4,5 Flat No. 301, Platinum, Chandra Kala Colony,
\nDurgapura, Pani Ki Tanki Wali Gali, Tonk Road, Jaipur.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\n2. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n3. Adjudicating Authority Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi
\n-110001
\n—-Respondents
\nS.B. Civil Writ Petition No. 14222\/2018
\nBhanwara Ram Nayak S\/o Shera Ram Nayak, aged about 57
\nyrs, R\/o Ridmalsar, Purohitan, Sagar, Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001
\n—-Respondents
\nS.B. Civil Writ Petition No. 14260\/2018
\nBalram Meghwal S\/o Ishwar Ram Meghwal, aged about
\n36\u2026.years, R\/o Near Manoj Dal Mill, Sarvoday Basti, Bikaner.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(10 of 160) [CW-2915\/2019]
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14274\/2018
\nKishan Lal S\/o Pira Ram Nayak, aged about 45 years, R\/o
\nNayako ka Mohalla, Village Palana, District Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14275\/2018
\nShyam Lal Mehtar S\/o Kalu Ram Mehtar, aged about 36 years,
\nR\/o Behind Shiv Mandir, Shivbari, Bikaner.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(11 of 160) [CW-2915\/2019]
\n2.
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14276\/2018
\nTejpal Mehtar S\/o Kalu Ram Mehtar, aged about 31 years, R\/o
\nBehind Shiv Mandir, Shivbari, Bikaner
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur.
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14277\/2018
\nKishan Lal Mehatar S\/o Kalu Ram Mehater, aged about 32 yr.,
\nR\/o Behind shiv Mandir, Shivbari, Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur.
\nUnion Of India Through Its Secretary, Income Tax
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(12 of 160) [CW-2915\/2019]
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14279\/2018
\nSharwan Singh, S\/o Nayak Singh Bawari, aged about 56 years,
\nR\/o 28 KYD, Khajuwala, Bikaner, through power of attorney
\nholder Sh. Anil Lohiya S\/o Nemi Chand Lohiya, aged 40 years,
\nR\/o F-101, Vallabh Garden, Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14282\/2018
\nGirja Shankar Asopa S\/o Mahadev Asopa, aged 60 years, R\/o
\nA-12, Karni Nagar, Pawam Puri, Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(13 of 160) [CW-2915\/2019]
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14285\/2018
\nJangir Singh, S\/o Nanak Singh Bawari, aged about 59 years,
\nR\/o 28 KYD, Khajuwala, Bikaner through power of attorney
\nholder Sh. Anil Lohiya S\/o Nemi Chand Lohiya, aged 40 years,
\nR\/o F-101, Vallabh Garden, Binaker.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14286\/2018
\nRatan Sirohi S\/o Shri Gopal Kishan Sirohi, aged about 40 years,
\nR\/o Opposite Karni Market, Phar Bazar, Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(14 of 160) [CW-2915\/2019]
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 14289\/2018
\nPratap Singh, S\/o Nanak Singh Bawari, aged about 40 years,
\nR\/o 28 KYD, Khajuwala, Bikaner, throuth power of attorney
\nholder sh. Anil Lohiya S\/o Nemi chand Lohiya, aged 40 years,
\nR\/o F-101, Vallabh Garden, Bikaner.
\n—-Petitioners
\nVersus
\n1.
\n2.
\nDy. Commissioner of Income Tax (Benami Transaction)
\nand Initiating Officer under the Prevention of Benami
\nTransaction Act 2016, Room No. 250, Statue Circle,
\nNCRB, Income Tax Office, Jaipur
\nUnion Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India , New Delhi
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 26, 4Th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi-
\n110001.
\n—-Respondents
\nS.B. Civil Writ Petition No. 15308\/2018
\nSmt Beena Singh Wife Of Dr. Jitendra Singh, Aged About 53
\nYears, Resident Of Village Pidwali, Panchayat Samiti And Tehsil
\nBayana, District Bharatpur In The State Of Rajasthan
\n—-Petitioner
\nVersus
\n1. Union Of India, Through The Secretary, Ministry Of
\nFinance (Department Of Revenue) North Block, New Delhi
\n2. Deputy Commissioner Of Income-Tax (Benami
\nProhibition) & Initiating Officer, Under The Prohibition Of
\nBenami Property Transactions Act, 1988, New Central
\nRevenue Building, Statue Circle, Bhagwan Das Road, CScheme,
\nJaipur
\n—-Respondents
\nS.B. Civil Writ Petition No. 16304\/2018
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(15 of 160) [CW-2915\/2019]
\nGulab Singh Yadav alias Ramu Ram Alias Ramu Son Of Brij Lal
\nAlias Virdhi Chand, Aged About 45 Years, R\/o Plot No. 804E,
\nKisan Marg, Opp. Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur
\n—-Petitioner
\nVersus
\n1. Union Of India Through Its Secretary, Income Tax
\nDepartment, Government Of India New Delhi
\n2. Dy. Commissioner Of Income Tax (Benami Prohibition)
\nAnd Initiating Officer, Under The Prevention Of Benami
\nProperty Transaction Act, 1988, Room No. 250, Statue
\nCircle, Ncrb, Statue Circle, Jaipur
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act1988, Room No. 26, 4th Floor,
\nJeevan Deep Building, Parliament Street, New Delhi
\n-110001
\n—-Respondents
\nS.B. Civil Writ Petition No. 21219\/2018
\nM\/s Finetech Macro Developers Pvt. Ltd., (a registered
\ncompanies registered Under The Companies Act, 1956)
\nRegistered Office E-666, Prim Pavilion, Nakul Path, Lal Kothi
\nScheme, Jaipur through its Director, Shri Charan Singh
\nKhangarot, S\/o Shri Mukut Singh, By Caste Rajput Aged About
\n41 Years Resident of Plot No. M-28, Income Tax Colony, Tonk
\nRoad, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner (Benami Prohibition), Rajasthan And
\nInitiating Officer, Prohibition Of Benami Transactions Act,
\n1988, Room No. 250, Statue Circle, NSRB, Income Tax
\nOffice, Jaipur
\n2. Adjudicating Authority, (Under The Prohibition Of Benami
\nProperty Transactions Act, 1988), Office At Room No. 26,
\nFourth Floor, Jeevan Deep Building, New Delhi-110001
\n3. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 21220\/2018
\nM\/s Finetech Macro Developers Pvt. Ltd., (a registered
\ncompanies registered Under The Companies Act, 1956)
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(16 of 160) [CW-2915\/2019]
\nRegistered Office E-666, Prim Pavilion, Nakul Path, Lal Kothi
\nScheme, Jaipur Through Its Director, Shri Charan Singh
\nKhangarot, S\/o Shri Mukut Singh, By Caste Rajput Aged About
\n41 years resident of Plot No. M-28, Income Tax Colony, Tonk
\nRoad, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner (Benami Prohibition), Rajasthan And
\nInitiating Officer, Prohibition Of Benami Transactions Act,
\n1988, Room No. 250, Statue Circle, Ncrb, Income Tax
\nOffice, Jaipur
\n2. Adjudicating Authority, (Under The Prohibition Of Benami
\nProperty Transactions Act, 1988), Office At Room No. 26,
\nFourth Floor, Jeevan Deep Building, New Delhi-110001
\n3. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 21229\/2018
\nM\/s Finetech Macro Developers Pvt. Ltd., (a Registered
\nCompanies registered under the Companies Act, 1956)
\nregistered office E-666, Prim Pavilion, Nakul Path, Lal Kothi
\nScheme, Jaipur through its Director, Shri Charan Singh
\nKhangarot, S\/o Shri Mukut Singh, By Caste Rajput Aged About
\n41 Years Resident Of Plot No. M-28, Income Tax Colony, Tonk
\nRoad, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner (Benami Prohibition), Rajasthan And
\nInitiating Officer, Prohibition Of Benami Transactions Act,
\n1988, Room No. 250, Statue Circle, NCRB, Income Tax
\nOffice, Jaipur
\n2. Adjudicating Authority, (Under The Prohibition Of Benami
\nProperty Transactions Act, 1988), Office At Room No. 26,
\nFourth Floor, Jeevan Deep Building, New Delhi-110001
\n3. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 25438\/2018
\nDr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S\/o Late Sh.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(17 of 160) [CW-2915\/2019]
\nBraj Lal alias Virdhi Chand Yadav, Aged About 52 Years, R\/o Plot
\nNo. 10, Achrol House, Civil Lines, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Union Of India, Through Its Secretary, Ministry Of
\nFinance, Department Of Revenue, Government Of India,
\nNew Delhi.
\n2. Dy. Commissioner Of Income Tax, (Benami Prohibition)
\nand Initiating Officer Under The Prevention Of Benami
\nProperty Transaction Act 1988, Room No. 250, NCR
\nBuilding, Statue Circle, Jaipur.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Through Its Registrar,
\nRoom No. 17, 4th Floor, Jeevan Deep Building, Parliament
\nStreet, New Delhi – 110001
\n4. Sh. Gulab Singh Yadav S\/o Sh. Braj Lal @ Virdhi Chand
\nYadav, Aged About 45 Years, R\/o Plot No. 804 E, Kisan
\nMarg, In Front of Ahinsa Park, Barkat Nagar, Tonk Road,
\nJaipur.
\n—-Respondents
\nS.B. Civil Writ Petition No. 25439\/2018
\nDr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S\/o Late Sh.
\nBraj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R\/o Plot
\nNo. 10, Achrol House, Civil Lines, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Union Of India, Through Its Secretary, Ministry Of
\nFinance, Department Of Revenue, Government Of India,
\nNew Delhi.
\n2. Dy. Commissioner Of Income Tax, (Benami Prohibition)
\nAnd Initiating Officer Under The Prevention Of Benami
\nProperty Transaction Act 1988, Room No. 250, NCR
\nBuilding, Statue Circle, Jaipur.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Through Its Registrar,
\nRoom No. 17, 4th Floor, Jeevan Deep Building, Parliament
\nStreet, New Delhi \u2013 110001
\n\u2013—Respondents
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(18 of 160) [CW-2915\/2019]
\n4. Sh. Gulab Singh Yadav S\/o Sh. Braj Lal @ Virdhi Chand
\nYadav, R\/o Plot No. 804 E, Kisan Marg, in front Of Ahinsa
\nPark, Barkat Nagar, Tonk Road, Jaipur.
\n5. Smt. Vinita Yadav W\/o Sh. Gulab Singh Yadav, R\/o Plot
\nNo. 804 E, Kisan Marg, In Front Of Ahinsa Park, Barkat
\nNagar, Tonk Road, Jaipur.
\n6. Ms. Riya Yadav D\/o Sh. Gulab Singh Yadav R\/o Plot no.
\n804 E, Kisan Marg, in Front Of Ahinsa Park, Barkat Nagar,
\nTonk Road, Jaipur.
\n—-Proforma Respondents
\nS.B. Civil Writ Petition No. 25440\/2018
\nDr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S\/o Late Sh.
\nBraj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R\/o Plot
\nNo. 10, Achrol House, Civil Lines, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Union Of India, Through Its Secretary, Ministry Of
\nFinance, Department Of Revenue, Government Of India,
\nNew Delhi.
\n2. Dy. Commissioner Of Income Tax, (Benami Prohibition)
\nand Initiating Officer Under The Prevention Of Benami
\nProperty Transaction Act 1988, Room No. 250, NCR
\nBuilding, Statue Circle, Jaipur.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Through Its Registrar,
\nRoom No. 17, 4th Floor, Jeevan Deep Building, Parliament
\nStreet, New Delhi \u2013 110001
\n——Respondents
\n4. Sh. Gulab Singh Yadav S\/o Sh. Braj Lal @ Virdhi Chand
\nYadav, R\/o Plot No. 804 E, Kisan Marg, In Front Of Ahinsa
\nPark, Barkat Nagar, Tonk Road, Jaipur.
\n—-Proforma Respondents
\nS.B. Civil Writ Petition No. 25441\/2018
\nDr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S\/o Late Sh.
\nBraj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R\/o Plot
\nNo. 10, Achrol House, Civil Lines, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(19 of 160) [CW-2915\/2019]
\n1. Union Of India, Through Its Secretary, Ministry Of
\nFinance, Department Of Revenue, Government Of India,
\nNew Delhi.
\n2. Dy. Commissioner Of Income Tax, (Benami Prohibition)
\nAnd Initiating Officer Under The Prevention Of Benami
\nProperty Transaction Act 1988, Room No. 250, Ncr
\nBuilding, Statue Circle, Jaipur.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Through Its Registrar,
\nRoom No. 17, 4Th Floor, Jeevan Deep Building, Parliament
\nStreet, New Delhi – 110001
\n4. Sh. Gulab Singh Yadav S\/o Sh. Braj Lal @ Virdhi Chand
\nYadav, R\/o Plot No. 804 E, Kisan Marg, In Front Of Ahinsa
\nPark, Barkat Nagar, Tonk Road, Jaipur.
\n—-Respondents
\nS.B. Civil Writ Petition No. 25602\/2018
\nDr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S\/o. Late Sh.
\nBraj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R\/o. Plot
\nNo. 10, Achrol House, Civil Lines, Jaipur, Rajasthan.
\n—-Petitioner
\nVersus
\n1. Union Of India, Through Its Secretary, Ministry Of
\nFinance, Department Of Revenue, Government Of India,
\nNew Delhi.
\n2. Dy. Commissioner Of Income Tax (Benami Prohibition),
\nAnd Initiating Officer Under The Prevention Of Benami
\nProperty Transaction Act 1988, Room No. 250, NCR
\nBuilding, Statue Circle, Jaipur.
\n3. Adjudicating Authority, Under The Prohibition Of Benami
\nProperty Transaction Act, 1988, Through Its Registrar,
\nRoom No. 17, 4Th Floor, Jeevan Deep Building, Parliament
\nStreet, New Delhi-110 001.
\n—-Respondents
\n4. Sh. Gulab Singh Yadav S\/o. Sh. Braj Lal @ Virdhi Chand
\nYadav, Aged About 45 Years, R\/o Plot No. 804 E, Kisan
\nMarg, In Front Of Ahinsa Park, Barkat Nagar, Tonk Road,
\nJaipur.
\n—-Proforma Respondents
\nS.B. Civil Writ Petition No. 27102\/2018
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(20 of 160) [CW-2915\/2019]
\n1. Sitaram Meena S\/o Shri Phool Chand Meena, aged about
\n33 Years, By Caste Meena, R\/o 199, Patel Colony, Badi Ka
\nBaas, via-Sitapura Tehsil Sanganer, Jaipur (Rajasthan)
\n2. Charan Singh Khangarot S\/o Shri Mukut Singh Khangarot,
\naged about 40 Years, By Caste Rajput, R\/o M-28, Income
\nTax Colony, Durgapura Tonk Road, Jaipur, Rajasthan
\n3. Udai Buildhome Pvt. Ltd., having its registered office at
\n302, Golden Sunrise Apartment, Lajpat Nagar, C-Scheme,
\nJaipur through its principal officer\/ director duly Shri
\nSandeep Sharma S\/o Shri Totaram Sharma aged 36 Years
\nR\/o 74-B, Phool Kunj, Gaurav Nagar, Civil Lines, Jaipur
\nduly authorized by the company
\n—-Petitioners
\nVersus
\n1. Dy Commissioner (Benami Prohibition), Rajasthan And
\nInitiating Officer, Prohibition of Benami Transactions Act,
\n1988, Room No. 250, Statue Circle, Ncrb, Income Tax
\nOffice, Jaipur
\n2. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi
\n3. Adjudicating Authority (Under The Prohibition Of Benami
\nProperty Transactions Act, 1988), Office at Room No. 26,
\nFourth Floor, Jeevan Deep Building, New Delhi-110001
\n—-Respondents
\nS.B. Civil Writ Petition No. 27114\/2018
\n1. Sitaram Meena S\/o Shri Phool Chand Meena, aged about
\n33 Years, By caste Meena , R\/o 199, Patel Colony, Badi Ka
\nBaas, via-Sitapura Tehsil Sanganer, Jaipur (Rajasthan)
\n2. Charan Singh Khangarot S\/o Shri Mukut Singh Khangarot,
\naged about 40 Years, By Caste Rajput, R\/o M-28, Income
\nTax Colony, Durgapura Tonk Road, Jaipur, Rajasthan
\n3. Udai Buildhome Pvt. Ltd., having its registered office at
\n302, Golden Sunrise Apartment, Lajpat Nagar, C-Scheme,
\nJaipur through its principal officer\/ director duly Shri
\nSandeep Sharma S\/o Shri Totaram Sharma aged 36 Years
\nR\/o 74-B, Phool Kunj, Gaurav Nagar, Civil Lines, Jaipur
\nduly authorized by the company
\n—-Petitioners
\nVersus
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(21 of 160) [CW-2915\/2019]
\n1. Dy. Commissioner (Benami Prohibition), Rajasthan and
\nInitiating Officer, Prohibition of Benami Transactions Act,
\n1988, Room No. 250, Statue Circle, NCRB, Income Tax
\nOffice, Jaipur
\n2. Union of India, Through its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi
\n3. Adjudicating Authority (Under The Prohibition Of Benami
\nProperty Transactions Act, 1988), Office At Room No. 26,
\nFourth Floor, Jeevan Deep Building, New Delhi-110001
\n—-Respondents
\nS.B. Civil Writ Petition No. 27550\/2018
\nKishan Singh, S\/o Shri Gopal Singh, aged about 50 Years, R\/o
\n13, Jai Kishan Colony, Tonk Phatak, Jaipur In The State Of
\nRajasthan.
\n—-Petitioner
\nVersus
\n1. Union Of India, Through The Secretary, Ministry Of
\nFinance (Department Of Revenue) North Block, New Delhi
\n2. Deputy Commissioner Of Income-Tax (Benami
\nProhibition) & Initiating Officer, Under The Prohibition Of
\nBenami Property Transactions Act, 1988, New Central
\nRevenue Building, Statue Circle, Bhagwan Das Road, CScheme,
\nJaipur
\n—-Respondents
\nS.B. Civil Writ Petition No. 27551\/2018
\nChandra Mohan Bhati, S\/o Shri Gendilal Ji Bhati, Aged About 53
\nYears, R\/o 17, Kalyan Colony, Barkat Nagar, Tonk Phatak, Jaipur
\nIn The State of Rajasthan.
\n—-Petitioner
\nVersus
\n1. Union Of India, Through The Secretary, Ministry Of
\nFinance (Department Of Revenue) North Block, New Delhi
\n2. Deputy Commissioner Of Income-Tax (Benami
\nProhibition) & Initiating Officer, Under The Prohibition Of
\nBenami Property Transactions Act, 1988, New Central
\nRevenue Building, Statue Circle, Bhagwan Das Road, CScheme,
\nJaipur
\n—-Respondents
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(22 of 160) [CW-2915\/2019]
\nS.B. Civil Writ Petition No. 27552\/2018
\nVinika Bhati, D\/o Shri Chandra Mohan Bhati, Aged About 26
\nYears, R\/o 17, Kalyan Colony, Barkat Nagar, Tonk Phatak, Jaipur
\nIn The State Of Rajasthan
\n—-Petitioner
\nVersus
\n1. Union Of India, Through The Secretary, Ministry Of
\nFinance (Department Of Revenue) North Block, New Delhi
\n2. Deputy Commissioner Of Income-Tax (Benami
\nProhibition) And Initiating Officer, Under The Prohibition
\nOf Benami Property Transactions Act, 1988, New Central
\nRevenue Building, Statue Circle, Bhagwan Das Road, CScheme,
\nJaipur
\n—-Respondents
\nS.B. Civil Writ Petition No. 27553\/2018
\nLaxmi Bhati, W\/o Shri Chandra Mohan Bhati, Aged About 51
\nYears, R\/o 17, Kalyan Colony, Barkat Nagar, Tonk Phatak, Jaipur
\nIn The State Of Rajasthan
\n—-Petitioner
\nVersus
\n1. Union Of India, Through The Secretary, Ministry Of
\nFinance (Department Of Revenue) North Block, New Delhi
\n2. Deputy Commissioner Of Income-Tax (Benami
\nProhibition) And Initiating Officer, Under The Prohibition
\nOf Benami Property Transactions Act, 1988, New Central
\nRevenue Building, Statue Circle, Bhagwan Das Road, CScheme,
\nJaipur
\n—-Respondents
\nS.B. Civil Writ Petition No. 27554\/2018
\nAnjali Rathore, W\/o Shri Kishan Singh, Aged About 49 Years, R\/o
\n13, Jai Kishan Colony, Tonk Phatak, Jaipur In The State Of
\nRajasthan
\n—-Petitioner
\nVersus
\n1. Union Of India, Through The Secretary, Ministry Of
\nFinance (Department Of Revenue) North Block, New Delhi
\n2. Deputy Commissioner Of Income-Tax (Benami
\nProhibition) & Initiating Officer, Under The Prohibition Of
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:05 PM)
\n(23 of 160) [CW-2915\/2019]
\nBenami Property Transactions Act, 1988, New Central
\nRevenue Building, Statue Circle, Bhagwan Das Road, CScheme,
\nJaipur
\n—-Respondents
\nS.B. Civil Writ Petition No. 4212\/2019
\nRamdhan Meena S\/o Rewad Mal Meena, Village – Langdiyawad,
\nTehsil- Jamwaramgarh, District- Jaipur.
\n—-Petitioner
\nVersus
\n1. Deputy Commissioner Of Income Tax, (Benami
\nProhibition) & Initiating Officer Under The Prohibition Of
\nBenami Property Transactions Act For The State Of
\nRajasthan, Room No. 250, New Central Revenue Building,
\nStatue Circle, C-Scheme, Jaipur (Rajasthan).
\n2. Union Of India, Through Secretary, Ministry Of Finance,
\nDepartment Of Revenue, Income Tax Department,
\nGovernment Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 4396\/2019
\nRamdhan Meena S\/o Rewad Mal Meena, Village- Langdiyawad,
\nTehsil- Jamwaramgarh, District- Jaipur (Rajasthan).
\n—-Petitioner
\nVersus
\n1. Deputy Commissioner Of Income Tax, (Benami
\nProhibition) & Initiating Officer Under The Prohibition Of
\nBenami Property Transactions Act For The State Of
\nRajasthan, Room No. 250, New Central Revenue Building,
\nStatue Circle, C-Scheme, Jaipur (Rajasthan)
\n2. Union Of Inida, Through Secretary, Ministry Of Finance,
\nDepartment Of Revenue, Income Tax Department,
\nGovernment Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 4704\/2019
\nSita Devi W\/o Shri Ramdhan Meena, Aged About 28 Years, R\/o
\nVillage – Langdiyawad, Tehsil – Jamwaramgarh, District – Jaipur.
\n(Rajasthan).
\n—-Petitioner
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:06 PM)
\n(24 of 160) [CW-2915\/2019]
\nVersus
\n1. Deputy Commissioner Of Income Tax, (Benami
\nProhibition) & Initiating Officer Under The Prohibition Of
\nBenami Property Transactions Act For The State Of
\nRajasthan, Room No. 250, New Central Revenue Building,
\nStatue Circle, C-Scheme, Jaipur (Rajasthan).
\n2. Union Of India, Through Secretary, Ministry Of Finance,
\nDepartment Of Revenue, Income Tax Department,
\nGovernment Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 4897\/2019
\nRamdhan Meena S\/o Rewad Mal Meena, Village- Langdiyawad,
\nTehsil- Jamwaramgarh, District- Jaipur. (Rajasthan).
\n—-Petitioner
\nVersus
\n1. Deputy Commissioner Of Income Tax, (Benami
\nProhibition) & Initiating Officer Under The Prohibition Of
\nBenami Property Transactions Act For The State Of
\nRajasthan, Room No. 250, New Central Revenue Building,
\nStatue Circle, C-Scheme, Jaipur (Rajasthan).
\n2. Union Of India, Through Secretary, Ministry Of Finance,
\nDepartment Of Revenue, Income Tax Department,
\nGovernment Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 5284\/2019
\n1. M\/s Manglam Build Developers Limited, (a registered
\ncompanies registered under The Companies Act, 1956)
\nthrough its Authorized Signatory, Shri Sanjay Gupta Son
\nOf Shri Nand Kishore Gupta, resident of C-9, Barwada
\nHouse, Civil Lines, Jaipur.
\n2. Shri Sanjay Gupta Son Of Shri Nand Kishore Gupta,
\nResident Of C-9, Barwada House, Civil Lines, Jaipur.
\n—-Petitioners
\nVersus
\n1. Dy. Commissioner Of Income Tax, (Benami Transaction)
\nand Initiating Officer Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 250, Statue
\nCircle, NCRB, Income Tax Office, Jaipur.
\n2. Union Of India Through Its Secretary, Income Tax
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:06 PM)
\n(25 of 160) [CW-2915\/2019]
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nS.B. Civil Writ Petition No. 5352\/2019
\nRam Singh Meena S\/o Sh. Ramkaran, Aged About 50 Years, R\/o
\nMohalla Mainpura, Sawaimadhopur (Rajasthan).
\n—-Petitioner
\nVersus
\n1. Dy. Commissioner Of Income Tax, (Benami Transaction)
\nAnd Initiating Officer Under The Prohibition Of Benami
\nProperty Transaction Act 1988, Room No. 250, Statue
\nCircle, Ncrb, Income Tax Office, Jaipur.
\n2. Union Of India, Through Its Secretary, Income Tax
\nDepartment, Government Of India, New Delhi.
\n—-Respondents
\nFor Petitioner(s) : Mr. K.K. Sharma, Sr. Adv. with
\nMr. Sandeep Taneja
\nMr. M.M. Ranjan, Sr. Adv. with
\nMr. Rohan Agarwal
\nMr. Anant Kasliwal with
\nMr. Vaibhav Kasliwal, Ms. Charu
\nPareek, Mr. Pradeep Kumar
\nMr. Gunjan Pathak
\nMr. N.L. Agarwal
\nFor Respondent(s) : Mr. Prabhuling K Navadgi, Sr. Adv.
\nwith Mr. Prabhansh Sharma,
\nMr. R.B. Mathur
\nHON’BLE MR. JUSTICE VEERENDR SINGH SIRADHANA
\nOrder
\n12 th July, 2019
\nThe above noted batch of writ applications, projects a
\nchallenge to the jurisdiction of the income tax authorities in
\ninitiation of proceedings under section 24 of the Prohibition of
\nBenami Property Transactions Act, 1988 (for short, Benami Act of
\n1988), as amended vide Benami Transactions (Prohibition)
\nAmendment Act, 2016 (for short, Benami Amendment Act of
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n2016), which came into effect on 01st November, 2016. Hence, the
\nmatters have been entertained collectively for final adjudication at
\nthis stage by this common order consented by the counsel for the
\nparties.
\n2. Shorn off unnecessary details, the essential skeletal material
\nfacts needs to be taken note of for adjudication of the controversy
\nare: that the Income Tax Department conducted search and
\nseizure under Section 132 of the Income Tax Act, 1961, on various
\npremises belonging to the petitioners and in course of search and
\nseizure, several incriminating documents were found, indicating
\nseveral benami transactions in purchase of lands involved herein.
\nAccordingly, show cause notices were issued under section 24 (1)
\nof the amended Benami Act of 1988, to show cause why action
\nshould not be taken against them under Section 24 (4) of the
\namended Benami Act of 1988, as the consideration was actually
\npaid by the petitioners but the land was purchased in the name
\nand by another person, thus, making it a clear case of benami
\ntransaction. The respondent department made order of provisional
\nattachment under Section 24 (3) of the amended Benami Act, in
\nrespect of the properties mentioned in the show cause notices. It
\nis pleaded case of the petitioners that the initiating officer has
\nacted without jurisdiction, as the Benami Transaction (Prohibition)
\nAmendment Act, 2016, came into effect on 01st November, 2016
\nand the alleged benami transactions took place prior to that date.
\nThe said notices were responded in the same terms. However, the
\nInitiating Officer of the respondent department made order under
\nSection 24 (4) of the amended Benami Amendment Act of 2016,
\ncontinuing the provisional attachment of the properties involved
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\nherein. Thereafter, further show cause notices were issued by the
\nAdjudicating Authority under the provisions of the Benami
\nAmendment Act of 2016, as to why the order of provisional
\nattachment of the benami properties should not be confirmed and
\nthe matters are still pending before the said authority. The
\npetitioners, aggrieved of initiation of the proceedings and orders
\naforesaid, for being without jurisdiction, have instituted the instant
\nwrit petitions before this court.
\n3. Mr. Kamlakar Sharma, learned senior counsel for the
\npetitioner(s), stated that the initiation of the very proceedings for
\nprovisional attachment of the alleged benami properties, from the
\nvery beginning is per se illegal and arbitrary, as the alleged
\nbenami transactions took place before the search proceedings and
\nthe Benami Amendment Act of 2016, that came into existence
\nwith effect from 01st November, 2016, vide notification dated 25th
\nOctober, 2016, and therefore, the Benami Amendment Act of
\n2016, shall have prospective effect. Since the alleged benami
\ntransactions and date of discovery of the alleged benami
\ntransactions, are, of a date prior to coming into force of the
\nBenami Amendment Act of 2016; hence, the provisions as such
\nare inapplicable to the present cases.
\n4. Learned counsel for the petitioners vehemently asserted that
\nthe intent in introduction of the Benami Amendment Act of 2016,
\nwas to eradicate the discrepancies and loop holes that have crept
\nin with passage of time after the introduction of the Benami Act of
\n1988. Further, referring to the text of section 1 and 6 of the
\nBenami Amendment Act of 2016, it is vociferously contended that
\nit was never the intention of either the legislation or the executive
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\nthat the provisions of the Benami Amendment Act of 2016; be
\napplicable with retrospective effect. According to the learned
\ncounsel for the petitioners, the language employed with the
\nstatement that whoever enters into any benami transaction on
\nand after the date of commencement of the Benami Amendment
\nAct of 2016, that is on 1st November, 2016 or afterwards; leaves
\nno room for any doubt that the alleged benami transactions so
\ntransacted by the petitioners, before the commencement of the
\nBenami Amendment Act of 2016, doesn\u2019t fall under its purview.
\n5. In the backdrop of section 3 (3) of Benami Act of 1988 and
\nnew section 53 of Benami Amendment Act of 2016, it is pointed
\nout that the punishment for benami transaction under Benami Act
\nof 1988, was imprisonment for 3 years, which has been now
\nextended to 7 years, through the Benami Amendment Act of
\n2016. Therefore, the said amendment and provisions introduced,
\ncannot be applied retrospectively with penal consequences.
\n6. It was further added by the learned senior counsel for the
\npetitioners that as per the earlier provisions of the Benami Act of
\n1988, the benami property was to be acquired by the Government
\nby acquisition and no compensation was to be paid for the such
\nacquisition. Rules and Regulations for the acquisition aforesaid,
\nwere supposed to follow the Act of 1988, but the same were never
\nframed and notified thus making the acquisition of land through
\nbenami transaction, under the old\/un-amended provisions
\nredundant. Now, as per the provisions of the Benami Amendment
\nAct of 2016, the said benami property shall be confiscated instead
\nof acquisition. For confiscation of property, is a penal provision
\nwhich can only be prospective and if the penal provision is to be
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\napplied retrospectively, that would be arbitrary, illegal and in
\nviolation of the Article 20 of the Constitution of India in absence of
\nany contemplation to that effect under the amended Act. Thus,
\nBenami Amendment Act of 2016; cannot have retrospective
\napplication.
\n7. Counsel for the petitioners repelling the preliminary
\ncontention as to the very maintainability of the instant writ
\npetitions for the matters were stated to be pending before the
\nAdjudicating Authority, and therefore, being pre-mature and not
\nmaintainable before this court; contended that a glance of section
\n24 of the Benami Amendment Act of 2016; would reflect that writ
\npetitions are very much maintainable. For as per Section 24 (1) of
\nthe Benami Amendment Act of 2016, the Initiating Officer shall
\nissue notice to show cause as to why the property in question
\nshall not be considered a benami property and further issue notice
\nof provisional attachment of the said benami property. Moreover,
\nthere is no provision provided in section 24 of the Benami
\nAmendment Act of 2016, to file an appeal against the provisional
\nattachment of the alleged benami property. Thus, the petitioners
\nare left with no option other than to invoke the jurisdiction of this
\ncourt under Article 226 and\/or 227 of the Constitution of India.
\nFurther, the petitioners have challenged the very jurisdiction and
\nauthority of the respondent department to make such a
\nprovisional attachment of the alleged benami property, and
\ntherefore, the instant writ petitions are maintainable as the
\npetitioners have no other remedy for redressal of their grievance.
\n8. It is further alleged that the respondent department has
\ninitiated the proceeding involved herein in order to harass and
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\ntorment the petitioners for it is evident from the fact that the
\nrespondent department referred the matters to the Adjudicating
\nAuthority so soon they learned of the institution of the instant writ
\napplications by the petitioners before this court. Furthermore, the
\nrespondent department issued notices under Section 24 (3) of the
\nBenami Amendment Act of 2016, to the petitioners on the very
\nsame day when it issued notice to the local authorities to provide
\ninformation with respect to the transactions made in regard to the
\nalleged subject benami property. The notices under Section 24 (3)
\nof the Benami Amendment Act of 2016; are to be issued after
\nmaking thorough inquires and examination of reports or evidences
\nand not after issuing notices. Therefore, oblique intent of the
\nrespondent department is apparent on the face of record.
\n9. It is also pointed that no Rules could have been framed in
\nexercise of powers under section 68 of the Benami Amendment
\nAct of 2016, before 1st November, 2016 i.e. the date of its
\ncommencement. Hence, the Rules framed under the Benami
\nAmendment Act of 2016, are of no consequence. In order to
\nfortify their stand learned counsel for the petitioners have relied
\nupon the following dictionary meaning of term confiscation, phrase
\n\u2018Jaipur Region\u2019, Notifications, and opinions:
\n1. Notification of Ministry of Finance (Central Board of Direct
\nTaxes), dated 25th October, 2016.
\n2. Notification of Ministry of Finance (Department of Revenue),
\ndated 25th October, 2016.
\n3. Notification of Ministry of Finance (Department of Revenue),
\ndated 25th October, 2016, S.O. 3288 (E), S.O. 3289(E) and 6A. 6.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n(31 of 160) [CW-2915\/2019]
\nNotification of Ministry of Finance (Department of Revenue), dated
\n19th May, 2016, S.O. 1830 (E), (iii)
\n4. The Benami Transactions (Prohibition) Act, 1988 (for short, \u2018the
\nAct of 1988\u2019)
\n5. In the case of R. Rajagopal Reddy (dead) by LRs. And Ors. Vs.
\nPadmini Chandrashekharan (Dead) by LRs.: (1995)2 SCC 630.
\n6. In the case of Mangathai Ammal (died) through Lrs and Ors.
\nVs. Rajeshwari & Ors.:Civil Appeal No. 4805 of 2019, decided by
\nthe Apex Court of the land, on 9th May, 2019.
\n7. In the case of K.T. Plantation Pvt. Ltd. and Anr. Vs. State of
\nKarnataka: AIR 2011 SC 3430.
\n8. In the case of Garikapati Veeraya vs. N. Subbiah Choudhary
\nand Ors. : AIR 1957 SC 540.
\n9. In the case of Keshavan Madhava Menon Vs State of Bombay:
\nAIR 1951 SC 128.
\n10. In the case of Monnet Ispat & Energy Ltd. Vs. UOI & Ors.
\n(2012) 11 SCC 1.
\n11. Commissioner of Income Tax vs. Vatika Township Private
\nLimited (2015) 1 SCC 1
\n12. Prakash and Ors. vs. Phulavati and Ors. (2016) 2 SCC 36
\n13. Sukhdev Singh vs. State of Haryana (2013) 2 SCC 212
\n14. J.S Yadav Vs. State of U.P. & Ors. 2011 6 Scc 570
\n15. Shakti Tubes Ltd. vs. State of Bihar and Ors. (2009) 7 SCC
\n673
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n(32 of 160) [CW-2915\/2019]
\n16. O. Konavalov vs. Commander, Coast Guard Region and Ors.
\n(2006)4SCC620
\n17. M\/S Pepsi Foods Ltd. and Ors. vs. Special Judicial Magistrate
\nand Ors. AIR 1998 SC 128
\n18. Collector of Central Excise, Ahmedabad vs. Orient Fabrics Pvt.
\nLtd. (2004 ) 1 SCC 597
\n19. Suhas H. Pophale vs. Oriental Insurance Co. Ltd. and its
\nEstate Officer (2014) 4 SCC 657
\n20. State of Punjab and Ors. vs. Bhajan Kaur and Ors. (2008 )
\n12SCC 112
\n21. Jeans Knit (P) Ltd. vs. Deputy Commissioner of Income Tax
\nand Ors (2018) 12 SCC 36
\n22. Calcutta Discount Company Limited vs. Income Tax Officer,
\nCompanies District, I and Ors. AIR 1961 SC 372
\n23. Raza Textiles Ltd. vs. Income Tax Officer, Rampur (1973) 1
\nSCC 633
\n24. Malayala Manorama Co. Ltd vs Assistant Commissioner,
\nCommercial Taxes , Civil Appeal No. 2267\/2007, decided on July
\n8, 2010
\n25. In the case of Bhibhuti Bhusan Bankura Vs. Sate of West
\nBengal: 1994 (1) CLJ 353
\n26. In the case of Thakur Bhim Singh (dead) By Lrs and Ors. Vs.
\nThakur Kan Singh: AIR 1980 SC 727.
\n27. Joseph Isharat vs. Rozy Nishikant Gaikwad 2017(5)ABR706
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n10. Per contra: Mr. Prabhuling K. Navadgi, learned Sr. counsel
\nwith Mr. Prabhansh Sharma and Mr. R.B. Mathur, advocates,
\nresisted the claim of the petitioners raising preliminary objections
\nas to the very maintainability of the writ applications at this stage
\nwhile the entire proceedings are pending consideration before the
\nAdjudicating Authority. Learned counsel vehemently contended
\nthat it is well settled proposition of law that jurisdiction under
\nArticle 226 and\/or 227 of the Constitution of India can only be
\nexercised when there is no remedy available to the parties.
\nAccording to the learned counsel for the respondents, law in this
\nreference is no more res-integra, as has been declared by the
\nApex Court of the land on several occasions. In the backdrop of
\nthe provisions of Benami Act of 1988, as amended vide Benami
\nAmendment Act of 2016, it is contended that any order made by
\nthe authority therein, would be open to inquiry before the
\nAdjudicating Authority under Section 25 and 26 of the amended
\nAct. Further, the order made by Adjudicating Authority under
\nSection 26 (3), is open to an appeal before the Appellate Tribunal
\nas would be evident from Section 46 of the amended Benami Act
\nof 1988. And finally, Section 49 contemplates an appeal to the
\nHigh Court, to any party aggrieved by any decision or order of the
\nAppellate Tribunal within a period of 60 days, from the date of
\ncommunication of the order made by the Appellate Tribunal, on
\nany question of law arising out of such an order.
\n11. Furthermore, according to learned senior counsel, the
\npetitioners have admitted the fact that the matters are still
\npending before the Adjudicating Authority. Thus, the petitioners
\nhave instituted the present writ applications, contrary to the
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\nScheme of the Benami Act of 1988, as amended in the year 2016,
\nwhich provides a complete self contained procedure for resolution
\nof the matters arising therein; hence, the instant batch of writ
\napplications is premature and is not maintainable, and therefore,
\ndeserve to be dismissed on that ground alone.
\n12. Learned Senior Counsel for the respondents also emphasized
\nthat the provisions introduced by way of Benami Amendment Act
\nof 2016, would have retrospective application and cannot be
\nconsidered to be prospective keeping in view of the underlying
\nobject and intendment in introduction of amended Benami Act of
\n1988. It is urged that the main object behind introduction of the
\nBenami Act of 1988, on 19 May 1988, was to make benami
\ntransactions offence and to acquire such benami properties
\nthrough acquisition without compensation as per the procedure
\nprescribed therein, so that the unjust gains and benefits of
\nevasion of taxes could be avoided. Hence, keeping in view the
\nintendment and object in introduction of amended Benami Act of
\n1988; incorporating necessary amendments introduced through
\nBenami Amendment Act of 2016, only clarified and amplified the
\nintention of legislature in order to effectively cure and curb the
\nmischief of ever increasing corruption, which was the also
\nintended under the Principal Act i.e. Benami Act of 1988; enacted
\non 19 May 1988.
\n13. According to learned counsel for the respondents,
\nconfiscation of the benami property, a replacement, by way of
\namendment, is not a new introduction in totality to the Benami Act
\nof 1988. Acquisition without compensation is nothing but
\nconfiscation only; therefore, substitution of the term
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\nacquisition by another term i.e. confiscation, cannot be termed
\nas penal, in the backdrop of the object sought to be achieved
\nthrough the Benami Amendment Act of 2016.
\n14. It is further pointed out that similarly, change in the
\ndefinition of all \u2018Benami Transaction\u2019 would not alter the object and
\npurpose which remains the same as contemplated under the
\nprincipal Benami Act of 1988. The change in definition only
\nclarifies and amplifies the existing definition, without imposing any
\nnew liability or right accruing to the parties. Thus, the amendment
\nin the definition of \u2018Benami Transaction\u2019 is only descriptive and
\nexplanatory substitution. Referring to Rule of Hayden\u2019s case, it is
\ncontended that Lord Edverd Coke evolved the well accepted test to
\nunderstand the effectiveness of a new amendment on the
\nfollowing criteria:
\n(i) what was the law before making of the law;
\n(ii) what was the mischief and defect before the Act was
\npassed;
\n(iii) what remedy the Parliament as appointed; and
\n(iv) what was the reason of the remedy.
\n15. Hence, applying the test aforesaid, to the question of
\nretrospective application of the amended provisions,
\ninvolved in the instant batch of writ applications, would make it
\nevident that the object in introduction of the amendments,
\nthrough Benami Amendment Act of 2016, is to effectively cure the
\nmischief which could not be checked effectively, as intended by
\nthe Principal Act of 1988. Therefore, if the amendments are not
\napplied retrospectively, that would defeat the very purpose and
\nobject of its introduction. Hence, provisions of Benami Amendment
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\nAct of 2016, keeping in view the underlying object, shall have
\nretrospective application in order to effectively cure the mischief
\nthat persisted all along even after enactment of the unamended
\nBenami Act of 1988, which consisted only of 9 Sections.
\n16. Learned counsel would further contend that a glance of text
\nof section 3 (3) of the Benami Amendment Act of 2016, in no
\nuncertain terms contemplates that penalty for benami
\ntransactions, on or after commencement of the Benami
\nAmendment Act of 2016, would only be punishable in accordance
\nwith the provisions contained under Chapter VII of the
\nAmendment Act of 2016. Since, the provision itself contemplates
\npenalty for benami transactions on or after the commencement of
\nthe Benami Amendment Act of 2016, that would not mean that
\nthe benami transactions prior to its commencement, shall be free
\nfrom liability. According to learned counsel, the intended object of
\nthe statute by amendment, involved herein is two fold; firstly,
\nbenami transactions entered into on or after commencement of
\nBenami Amendment Act of 2016, shall be punishable under the
\namended provisions contained in Chapter VII by imprisonment for
\nseven years, and; secondly, the benami transactions prior to the
\ncommencement of Benami Amendment Act of 2016, shall be
\npenalized by the existing provisions contained in the unamended
\nBenami Act of 1988, i.e by three years imprisonment. Thus, the
\nprovision only provides for an enhanced punishment for benami
\ntransactions entered into on or after commencement of Benami
\nAmendment Act of 2016. Hence, no right to any party has accrued
\nnor a new liability created as to the pending benami transactions.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n17. Reference has also been made to text of Section 65 of the
\namended Benami Act of 1988, which contemplates transfer of
\npending cases. According to learned senior counsel, a glance of
\nthe text of Section 65 would reflect that the procedure provided
\ntherein for prevention of \u2018Benami Transactions\u2019 under the
\nprovisions of Benami Amendment Act of 2016, shall also apply to
\nall the \u2018Benami Transactions\u2019 pending on enactment of the Benami
\nAmendment Act of 2016. Hence, retrospective applicability of the
\namended Act of the Benami Act of 1988, is explicit. In order to
\nbuttress his contentions reliance is placed on the following
\nopinions:
\n1. Sree Bank Ltd. vs. Sarkar Dutt Roy and Co. AIR 1966 SC 1953
\n2. The Buckingham and Carnatic Co.Ltd. vs. Venkatiah and Ors.
\n[1964 ]4SCR 265
\n3. Rai Bahadur Seth Shreeram Durgaprasad vs. Director of
\nEnforcement (1987 )3SCC 27
\n4. Nar Bahadur Bhandari and Ors. vs. State of Sikkim and Ors.
\n(1998) 5 SCC 39
\n5. State of Punjab vs. Mohar Singh [1955 ]1SCR 893
\n6. Zile Singh vs. State of Haryana and Ors. (2004) 8 SCC 1
\n7. Yogendra Kumar Jaiswal and Ors. vs. State of Bihar and Ors.
\n(2016 )3SCC 183
\n8. Titaghur Paper Mills Co. Ltd. and Ors. vs. State of Orissa and
\nOrs. (1983 )2SCC 433
\n9. Thansingh Nathmal and Ors. vs. A. Mazid [1964 ]6SCR 654
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n10. State of H.P. and Ors. vs. Gujarat Ambuja Cement Ltd. and
\nOrs. AIR2005SC3936
\n11. Commissioner of Income Tax and Ors. vs. Chhabil Dass
\nAgarwal (2014 )1SCC 603
\n12. Harbanslal Sahnia and Ors. vs. Indian Oil Corpn. Ltd. and Ors.
\n(2003) 2 SCC 107
\n13. Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai
\nand Ors. (1998 )8 SCC 1
\n14. Vodafone International Holdings B.V. vs. Union of India (UOI)
\nand Ors. (2009) 321 CTR 617 (SC)
\n15. The Management of Express Newspapers Ltd. vs. Workers and
\nStaff Employed under it and Ors. (1963) 3 SCR 540
\n16. Raghuvinder Singh Vs Dy. Commissioner Of Income Tax,
\n(Benami Transaction) And Initiating Officer Under The Prevention
\nOf Benami Transaction Act 2016, S.B. Civil Writs No. 18701\/2018
\ndecided on 27\/08\/2018 Rajasthan High Court, Jaipur
\n17. S.B. Civil Writ Petition No. 2426 \/ 2018 Great Pacific General
\nTrading Company (Limited Liability Partnership), Vs. Union of
\nIndia, Through the Secretary, Ministry of Finance, Department of
\nRevenue, Decided on 27\/02\/2018 Rajasthan High Court, Jodhpur.
\nThe same judgement was challenged in D.B. Spl. Appl. Writ No.
\n1315\/2018 , decided on 22\/10\/2018.
\n18. MP-531-2017,decided on 09-01-2018, Dheeru Gond Vs. Union
\nof India, High Court of Madeya Pradesh
\n19. CIT, New Delhi Vs. Ram Kishan Dass 2019 (5) SCALE 312
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n(39 of 160) [CW-2915\/2019]
\n20. Authorized Officer, State Bank of Travancore and another Vs.
\nMathew K.C. (2018) 3 SCC 85
\n21. R. Rajgopal Reddy (Dead) by L.Rs. And Ors. Vs. Padmini
\nChandrasekhara (Dead) by L.Rs. (1995) 2 SCC 630
\n22. WA-704-2017, Kailash Assudani vs Commissioner Of Income
\nTax decided on 16 August, 2017
\n23. His Highness Maharaja Pratap Singh Vs. Maharani Sajojani
\nDevi and ors. :1994 supp (1) SCC 734
\n24. Kapur Chand Pokhraj Vs. State of Bombay: AIR 1958 SC 993
\n25. Canbank Financial Services Ltd. vs. The Custodian and Ors.
\n(2004) 8 SCC 355
\n18. Heard the learned counsel for the parties and with their
\nassistance perused the materials available on record as well as
\ngave my thoughtful consideration to the rival submissions at bar
\nand the opinions referred to and relied upon.
\n19. Considering the entire factual matrix, materials available on
\nrecord and pleadings of the parties, in the above noted writ
\napplications in totality, this court concluded to deal with the larger
\nquestion of retrospective applicability of the Benami Amendment
\nAct, 2016, consented by the counsel for the parties. Thus, the
\nquestion framed for determination, in substance, is:
\nWhether the provisions of Benami Amendment Act,
\n2016, shall be applicable retrospectively or not?
\n20. At the very outset, it will be in the fitness of things to deal
\nwith the preliminary objection raised by the learned senior
\ncounsel, appearing on behalf of the respondents as to the
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\nmaintainability of the writ applications in view of the scheme of
\nthe Benami Amendment Act, 2016, and in view of the opinion of
\nthe Supreme Court in the case of Vodafone International
\nHoldings B.V. (supra). A glance of the opinion referred to and
\nrelied upon would reflect that the Supreme Court while relying
\nupon earlier opinion in the case of the Management of Express
\nNewspapers Ltd. vs. Workers and Staff Employed under it
\nand Ors.: AIR 1963 SC 569; observed that normally, the
\nquestions of facts, though they may be jurisdictional facts, the
\ndecision of which depends upon the appreciation of evidence,
\nshould be left to be tried by the Special Tribunals constituted for
\nthat purpose. The Supreme Court in no uncertain terms, in the
\nsame opinion, observed that it did not lay down any fixed or
\ninflexible rule; whether or not even the preliminary facts should
\nbe tried by a High Court in a writ petition, for the same would
\ndepend upon the facts and circumstances of each case and upon
\nthe nature of the preliminary issue raised between the parties.
\n21. The factual matrix of the matters at hand, is entirely
\ndifferent and distinguishable, wherein the fact that the alleged
\nbenami transactions, involved herein, are of a date prior to seizure
\nand search conducted by the respondent-department, and also, of
\nthe date the provisions of Benami Amendment Act of 2016,
\nbrought into force i.e. 1st November, 2016. Hence, the
\nquestion in the instant batch of writ applications for determination
\nand adjudication, as to the retrospective application of the
\namended provisions introduced vide Benami Amendment Act of
\n2016, amending the Prohibition of Benami Transactions Act, 1988;
\nis a pure question of law. Thus, there is no factual matrix which
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\nrequires evidence and consequent appreciation and determination
\nthereon, in view of the undisputed statement as to the alleged
\nbenami transactions, which happens to be of dates precedent to
\nthe enactment of Benami Amendment Act of 2016.
\n22. It is also not in dispute that the rules in exercise of powers
\nconferred by virtue of Section 68 of the Benami Amendment Act of
\n2016, have been notified on 25th October, 2016, even before the
\nsubstantive section 68 of the Benami Amendment Act of 2016,
\nwas made effective for which date appointed is 1st November,
\n2016.
\n23. In the case of Whirlpool Corporation (supra), the Apex
\nCourt of the land held thus:
\n\u201c13. Learned counsel for the appellant has contended
\nthat since suo motu action Under Section 56(4) could
\nbe taken only by the High Court and not by the
\nRegistrar, the notice issued to the appellant was wholly
\nwithout jurisdiction and, therefore, a writ petition even
\nat that stage was maintainable. The appellant, in these
\ncircumstances, was not obliged to wait for the Registrar
\nto complete the proceedings as any further order
\npassed by the Registrar would also have been without
\njurisdiction.
\n14. The power to issue prerogative writs under Article
\n226 of the Constitution is plenary in nature and is not
\nlimited by any other provision of the Constitution This
\npower can be exercised by the High Court not only for
\nissuing writs in the nature of Habeas Corpus,
\nMandamus, prohibition, Qua Warranto and Certiorari for
\nthe enforcement of any of the Fundamental Rights
\ncontained in Part III of the Constitution but also for
\n“any other purpose”.
\n15. Under Article 226 of the Constitution, the High
\nCourt, having regard to the facts of the case, has
\ndiscretion to entertain or not to entertain a writ
\npetition. But the High Court has imposed upon itself
\ncertain restrictions one of which is that if an effective
\nand efficacious remedy is available, the High Court
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\nwould not normally exercise its jurisdiction. But the
\nalternative remedy has been consistently held by this
\ncourt not to operate as a bar in at least three
\ncontingencies, namely, where the Writ Petition has
\nbeen filed for the enforcement of any of the
\nFundamental rights or where there has been a violation
\nof the principle of natural justice or where the order or
\nproceedings are wholly without jurisdiction or the vires
\nof an Act is challenged.There is a plethora of case law
\non this point but to cut down this circle of forensic
\nwhirlpool we would rely on some old decisions of the
\nevolutionary era of the constitutional law as they still
\nhold the field.
\n20. Much water has since flown beneath the bridge, but
\nthere has been no corrosive effect on these decisions
\nwhich though old, continue to hold the field with the
\nresult that law as to the jurisdiction of the High Court in
\nentertaining a Writ Petition under Article 226 of the
\nConstitution, in spite of the alternative statutory
\nremedies, is not affected, specially in a case where the
\nauthority against whom the Writ is filed is shown to
\nhave had no jurisdiction or had purported to usurp
\njurisdiction without any legal foundation.
\n21. That being so, the High Court was not justified in
\ndismissing the Writ Petition at the initial stage without
\nexamining the contention that the show cause notice
\nissued to the appellant was wholly without jurisdiction
\nand that the Registrar, in the circumstances of the
\ncase, was not justified in acting as the “TRIBUNAL”.\u201d
\n24. A glance of the observations of the Apex Court of the land,
\nas extracted herein-above, would reflect that factual matrix of the
\nmatters at hand, is entirely different and distinguishable from the
\nfactual matrix of the Vodafone International Holdings B.V.
\n(supra), that fell for consideration of the Supreme Court. Hence,
\nthe opinion referred to and relied upon is of no help to the
\nrespondents in support of preliminary objection as to
\nmaintainability of the writ applications under Article 226 of the
\nConstitution.
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\n25. In the case of Calcutta Discount Company Limited
\n(supra), a Constitution Bench of the Apex Court of the land while
\nexamining the rejection order on a writ application under Article
\n226 of the Constitution of India, in the backdrop of notices issued
\nunder Section 34 of the Indian Income Tax Act, 1922, wherein the
\nIncome Tax Officer called upon the Company to submit fresh
\nreturns of its total income; in no uncertain terms observed that
\nthe pretended notice was issued without existence of the
\nnecessary conditions precedent, which confers jurisdiction under
\nsection 34; and therefore, the aggrieved party approaching the
\ncourt at the earliest opportunity, could not be denied relief for
\nexistence of such alternative remedy is not however always a
\nsufficient reason for refusing a party quick relief by a writ or order
\nprohibiting an authority acting without jurisdiction from continuing
\nsuch action. At this juncture, it will relevant to take note of the
\ntext of the opinion aforesaid, which reads thus:
\n\u201c1. This appeal is against an appellate decision of a
\nBench of the Calcutta High Court by which in reversal of
\nthe order made by the Trial Judge the Bench rejected
\nthe present appellant’s application under Article 226 of
\nthe Constitution. The appellant is a private limited
\ncompany incorporated under the Indian Company’s Act
\nand has its registered office in Calcutta. It was assessed
\nto income-tax for the assessment years, 1942-43,
\n1943-44 and 1944-45 by three separate orders dated
\nJanuary 26, 1944, February 12, 1944, and February 15,
\n1945, respectively. These assessments were made
\nunder section 23(3) of the Indian Income-tax Act upon
\nreturns filed by it accompanied by statements of
\naccount. The first two assessments were made by Mr. L.
\nD. Rozario the then Income-tax Officer had the last one
\nby Mr. K. D. Banerjee. The taxes assessed were duly
\npaid up. On March 28, 1951, three notices purporting to
\nbe under section 34 of the Indian Income-tax Act, 1922,
\nwere issued by the Income-tax Officer calling upon the
\ncompany to submit fresh returns of its total income and
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\nthe total world income assessable for the three
\naccounting years relating to the three assessment
\nyears, 1942-43 1943-44 and 1944-45. The appellant
\ncompany furnished returns in compliance with the
\nnotices but on September 18, 1951, applied to the High
\nCourt of Calcutta for issue under article 226 of the
\nConstitution of appropriate writs or orders directing the
\nIncome-tax Officer not to proceed to assess it on the
\nbasis of these notices. The first ground on which this
\nprayer was based was mentioned in the petition in these
\nterms: – “The said pretended notice was issued without
\nthe existence of the necessary conditions precedent
\nwhich confers jurisdiction under section 34
\naforementioned, whether before or after the
\namendment in 1948.” The other ground urged was that
\nthe amendment to section 34 of the Income-tax Act in
\n1948 was not retrospective and that the assessment for
\nthe years 1942-43, 1943-44 and 1944-45 became
\nbarred long before March 1951.
\n2. The Trial Judge held that the first ground was not
\nmade out but being of opinion that the amending Act of
\n1948 was not retrospective, he held that the notices
\nissued were without jurisdiction. Accordingly he made
\nan order prohibiting the Income-tax Officer from
\ncontinuing the assessment proceedings on the basis of
\nthe impugned notices.
\n3. The learned Judges who heard the appeal agreed
\nwith the Trial Judge that the first ground had not been
\nmade out. They held however that in consequence of
\nthe amendment of section 34 in 1948 the objection on
\nthe ground of limitation must also fail. A point of
\nconstitutional law which appears to have been raised
\nbefore the appeal court was also rejected. The appeal
\nwas allowed and the company’s application under article
\n226 was dismissed with costs.
\n6. To confer jurisdiction under this section to issue
\nnotice in respect of assessments beyond the period of
\nfour years, but within a period of eight years, from the
\nend of the relevant year two conditions have therefore
\nto be satisfied. The first is that the Income-tax Officer
\nmust have reason to believe that income, profits or
\ngains chargeable to income-tax have been underassessed.
\nThe second is that he must have also reason
\nto believe that such “under assessment” has occurred
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\nby reason of either (i) omission or failure on the part of
\nan assessee to make a return of his income under
\nsection 22, or (ii) omission or failure on the part of an
\nassessee to disclose fully and truly and all material facts
\nnecessary for his assessment for that year. Both these
\nconditions are conditions precedent to be satisfied
\nbefore the Income-tax Officer could have jurisdiction to
\nissue a notice for the assessment or reassessment
\nbeyond the period of four years but within the period of
\neight years, from the end of the year in question.
\n24. We are therefore bound to hold that the conditions
\nprecedent to the exercise of jurisdiction under section
\n34 of the Income-tax Act did not exist and the Incometax
\nOfficer had therefore no jurisdiction to issue the
\nimpugned notices under section 34 in respect of the
\nyears 1942-43, 1943-44 and 1944-45 after the expiry
\nof four years.
\n25. Mr. Sastri argued that the question whether the
\nIncome-tax Officer had reason to believe that underassessment
\nhad occurred “by reason of non-disclosure
\nof material facts” should not be investigated by the
\ncourts in an application under article 226. Learned
\nCounsel seems to suggest that as soon as the Incometax
\nOfficer has reason to believe that there has been
\nunder-assessment in any year he has jurisdiction to
\nstart proceedings under section 34 by issuing a notice
\nprovided 8 years have not elapsed from the end of the
\nyear in question, but whether the notices should have
\nbeen issued within a period of 4 years or not is only a
\nquestion of limitation which could and should properly
\nbe raised in the assessment proceedings. It is wholly
\nincorrect however to suppose that this is a question of
\nlimitation only not touching the question of jurisdiction.
\nThe scheme of the law clearly is that where the Incometax
\nOfficer has reason to believe that an under
\nassessment has resulted from non-disclosure he shall
\nhave jurisdiction to start proceedings for re-assessment
\nwithin a period of 8 years; and where he has reason to
\nbelieve that an under assessment has resulted from
\nother causes he shall have jurisdiction to start
\nproceedings for reassessment within 4 years. Both the
\nconditions, (i) the Income-tax Officer having reason to
\nbelieve that there has been under assessment and (ii)
\nhis having reason to believe that such under
\nassessment has resulted from non-disclosure of material
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\nfacts, must co-exist before the Income-tax Officer has
\njurisdiction to start proceedings after the expiry of 4
\nyears. The argument that the Court ought not to
\ninvestigate the existence of one of these conditions,
\nviz., that the Income-tax Officer has reason to believe
\nthat under assessment has resulted from non-disclosure
\nof material facts cannot therefore be accepted.
\n26. Mr. Sastri next pointed out that at the stage when
\nthe Income-tax Officer issued the notices he was not
\nacting judicially or quasi-judicially and so a writ of
\ncertiorari or prohibition cannot issue. It is well settled
\nhowever that though the writ of prohibition or certiorari
\nwill not issue against an executive authority, the High
\nCourts have power to issue in a fit case an order
\nprohibiting an executive authority from acting without
\njurisdiction. Where such action of an executive authority
\nfrom acting without jurisdiction subjects or is likely to
\nsubject a person to lengthy proceedings and
\nunnecessary harassment, the High Courts, it is well
\nsettled, will issue appropriate orders or directions to
\nprevent such consequences.
\n27. Mr. Sastri mentioned more than once the fact that
\nthe company would have sufficient opportunity to raise
\nthis question, viz., whether the Income-tax Officer had
\nreason to believe that under assessment had resulted
\nfrom non-disclosure of material facts, before the
\nIncome-tax Officer himself in the assessment
\nproceedings and, if unsuccessful there, before the
\nappellate Officer or the appellate tribunal or in the High
\nCourt under section 66(2) of the Indian Income-tax Act.
\nThe existence of such alternative remedy is not however
\nalways a sufficient reason for refusing a party quick
\nrelief by a writ or order prohibiting an authority acting
\nwithout jurisdiction from continuing such action.
\n28. In the present case the company contends that the
\nconditions precedent for the assumption of jurisdiction
\nunder section 34 were not satisfied and came to the
\ncourt at the earliest opportunity. There is nothing in its
\nconduct which would justify the refusal of proper relief
\nunder article 226. When the Constitution confers on the
\nHigh Courts the power to give relief it becomes the duty
\nof the courts to give such relief in fit cases and the
\ncourts would be failing to perform their duty if relief is
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\nrefused without adequate reasons. In the present case
\nwe can find no reason for which relief should be refused.
\n38. That the Income Tax Officer has reason to believe
\nthat there was under assessment in the material years
\nwas not challenged by the appellant and in our opinion
\nrightly. There are on the record the reports of Income
\nTax Officer in which the belief is expressly set out. It
\nalso appears from the assessment orders for the years
\n1945-46 and 1946-47 that tax has been assessed on
\nthe profits made by sale of shares by the company in
\nthose years.\u201d
\n26. In the Raza Textiles Ltd. (supra), while examining the
\nquestion as to whether the order of Income Tax Officer, a
\nquasi judicial authority, is, subject to review by the High
\nCourt under Article 226 of the Constitution of India, was ruled
\nin affirmative. At this stage, it will be profitable to take note
\nof contents of paragraph 3 of the opinion aforesaid, which
\nreads thus:
\n\u201c3. Aggrieved by that order the appellant went up in
\nappeal to the Appellate Assistant Commissioner. The
\nAppellate Assistant Commissioner rejected the appeal
\non the ground that the same was not maintainable. He
\ntook the view that an appeal lay only under Section
\n30(1A). But before such an appeal can be entertained
\nthe appellant must satisfy two conditions, namely, (1)
\nhe had deducted the tax due from the non-resident in
\naccordance with the provisions of Sub-section 3(B) and
\n(2) that he had paid the sum deducted to the
\nGovernment. The appellant having not complied with
\nthose two conditions, the Appellate Assistant
\nCommissioner held that the appeal was incompetent.
\nThe order of the Appellate Assistant Commissioner was
\nconfirmed by- the Tribunal. Thereafter the appellant
\nmoved the High Court under Article 226 of the
\nConstitution. That application came up before a single
\nJudge. The single Judge after going into the matter in
\ndetail came to the conclusion that M\/s. Nathirmal and
\nSons is not a non-resident firm and that being so the
\nappellant was not required to act under Section 18(3B).
\nHe accordingly, set aside the order impugned. The
\nrevenue went up in appeal against the order of the
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\nlearned single Judge to the Appellate Bench. That Bench
\nallowed the appeal with the observations, “In the
\npresent case the question before the Income-tax Officer,
\nRampur, was whether the firm Nathirmal and Sons was
\nnon-resident or not. There was material before him on
\nthis question. He had jurisdiction to decide the question
\neither way. It cannot be said that the officer assumed
\njurisdiction by wrong decision on this question of
\nresidence”. The Appellate Bench appears to have been
\nunder the impression that the Income-tax Officer was
\nthe sole judge of the fact whether the firm in question
\nwas resident or non-resident. This conclusion, in our
\nopinion, is wholly wrong. No authority, much less a
\nquasi-judicial authority, can confer jurisdiction on
\nitself by deciding a jurisdictional fact wrongly. The
\nquestion whether the jurisdictional fact has been
\nrightly decided or not is a question that is open for
\nexamination by the High Court in an application
\nfor a writ of certiorari. If the High Court comes to
\nthe conclusion, as the learned single Judge has
\ndone in this case, that the Income-tax Officer had
\nclutched at the jurisdiction by deciding a
\njurisdictional fact erroneously, then the assesses
\nwas entitled for the writ of certiorari prayed for by
\nhim. It is incomprehensible to think that a quasijudicial
\nauthority like the Income-tax Officer can
\nerroneously decide a jurisdictional fact and
\nthereafter proceed to impose a levy on a citizen.
\nIn our opinion the Appellate Bench is wholly wrong in
\nopining that the Income-tax Officer can “decide either
\nway”.
\n27. In the case of Malayala Manorama Co. Ltd. (supra), the
\nApex Court of the land on a survey of earlier opinions including
\nWhirlpool Corporation (supra), repelling the plea of availability
\nof statutory alternative remedy while remanding the matter back
\nto the High Court, observed thus:
\n\u201c5. The assessee firm did not take recourse to the
\nstatutory remedies available under the Act but
\nquestioned the very correctness and legality of the
\nissuance of the notice as well as the order passed by
\nthe Assistant Commissioner before the High Court of
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\nKerala at Ernakulam, by filing a writ petition
\nunder Article 226 of the Constitution of India.
\n6. This writ petition was contested by the Department
\nwhich filed detailed counter affidavit. It was specifically
\npleaded by the Department that for availability of
\nstatutory alternative remedy as well as for other
\nreasons and facts stated in the reply, the writ petition
\nitself was not maintainable. The Division Bench of the
\nHigh Court while considering this primary objection
\nraised by the Department before the High Court, came
\nto the conclusion that as the facts were not in dispute
\nand questions raised were purely legal and are to be
\ntested in view of the judgment of this Court in the case
\nof Printers (Mysore) Ltd. v. Assistant Commercial Tax
\nOfficer [(1994) 93 Sales Tax Cases 95 : (1994) 2 SCC
\n434], Whirlpool Corporation v. Registrar of Trade
\nMarks [(1998) 8 SCC 1] as well as the judgment in the
\ncase of State of H.P. & Ors. v. Gujarat Ambuja Cements
\nLtd. [(2005) 6 SCC 499 : (2005) 142 Sales Tax Cases
\n1], the writ petition was maintainable. However, while
\nlaying emphasis that the newspaper would not fall
\nwithin the expression `goods’ under sub-section 3 of
\nSection 5 of the Act, the High Court held that the notice
\nissued was proper as Form No. 18 which gives benefit
\nof concessional rate of tax was factually not correct.
\nWhile dismissing the writ petition, however, the Bench
\nissued a direction to the assessing authority to examine
\nwhether the imposition of penalty at double the rate is
\njustified in the facts and circumstances of the case,
\nwithin a period of two months from the date of receipt
\nof the copy of the judgment. It is this judgment of the
\nHigh Court which has been assailed in the present
\nappeal under Article 136 of the Constitution of India.
\n9. Having heard the learned senior counsel appearing
\nfor the parties, we are of the considered view that the
\norder under challenge requires interference by this
\nCourt. There is no dispute to the fact that the material
\namendments were carried out in the provisions
\nof Section 5(3) of the Act with effect from 01.04.2002.
\nThe existing 1st proviso to Section 5(3)(i) was deleted
\nas well as the expression `or uses the same in the
\nmanufacture of any goods which are not liable to tax in
\nthis Act’ in Section 5(3)(i) was also deleted. Despite
\nthese amendments, as it appears from the record
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\nbefore the Court, format of Form No. 18 has not been
\namended consequently. However, the fact of
\nthematter remains that the High Court has not
\ndwelt upon these legal issues which are the core
\nissues involved in the present case. In our view,
\nthe discussion on the first issue would certainly
\nhave some bearing on the alternative argument
\nraised on behalf of the appellant before us. Thus,
\nit may not be possible for this Court to sustain
\nthe finding recorded by the High Court in that
\nregard. Of course, we are not ruling out all the
\npossibilities of the High Court arriving at the
\nsame conclusion if it is of that view after
\nexamining the amendments as well as the
\nsubmissions made on behalf of the appellant with
\nregard to its alternative submissions. In light of
\nthis discussion, we pass the following order :
\n(a) The impugned order dated 2nd August,
\n2006 passed by the High Court is hereby
\nset aside.
\n(b) The matter is remanded to the High
\nCourt for consideration afresh in
\naccordance with law on both the aforesaid
\nsubmissions while leaving all the
\ncontentions of the assessee and the
\nDepartment open for the year 2000- 2001,
\nin relation to imposition of penalty
\nunder Section 45 (A) of the Act.
\n(c) The legality and validity or otherwise of the
\nnotice dated 16.01.2006 and 17.01.2006 shall be
\nsubject to the final decision of the High Court.
\n28. Applying the principle deducible from the opinions supra, to
\nthe preliminary objections raised by the learned senior counsel for
\nthe respondents, as to maintainability of the writ applications;
\nmerits rejection, and is, hereby rejected.
\n29. Indisputably, in all the writ applications constituting the
\nbatch; the alleged benami transactions are of a date preceding 1st
\nNovember, 2016. In some of the matters, even prior to the
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\ncommencement of unamended Benami Act of 1988, which came
\ninto effect on 5th September, 1988 whereas Sections 3, 5 and 8 of
\nthe unamended Benami Act, 1988, were deemed to have come
\ninto force on 19th day of May, 1988 i.e with retrospective effect.
\nThe Benami Amendment Act, 2016 (43 of 2016), has been made
\napplicable from the date appointed by the Central Government
\nvide notification dated 25th October, 2016. And the appointed date
\ndetermined, is, 1st November, 2016, as the date on which the
\nprovisions of the Benami Amendment Act, 2016, shall come into
\nforce.
\n30. A comparative consideration of Section 2 of the Benami Act,
\n1988 and the Benami Amendment Act, 2016, would reflect that
\nthe definitions under the unamended Act contains sub-section (1)
\nto (4) only, whereas the amending Benami Amendment Act, 2016,
\ncontains sub-section (1) to (31), defining various terms and
\nphrases elaborately. Learned counsel for the parties referring to
\nthe aims, objects and scope of amendment in the Principal Act of
\n1988 vide Benami Transactions (Prohibition) Amendment Act,
\n2016, contended that while the earlier unamended Benami Act,
\n1988, consisted of only 9 Sections, the Benami Amendment Act,
\n2016, consisted of as many as 72 Sections.
\n31. However, the unamended Benami Act of 1988, for the first
\ntime contemplated prohibition of benami transactions vide Section
\n3. Section 4 prohibited right to recover property held benami.
\nSection 5 contemplated properties held benami subject to
\nacquisition by such authority in such manner and following such
\nprocedure as may be prescribed; without payment of any amount
\nfor acquisition of any property that was held benami. The
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\nunamended Benami Act, 1988, vested the Central Government
\nwith the power to frame rules for carrying out the purpose of the
\nBenami Act, 1988, by notification in the official gazette. Since no
\nrules were framed by the Central Government in exercise of
\npowers under Section 8 of the unamended Benami Act, 1988, for
\nacquisition of properties held benami; no property was acquired
\ndespite the unamended Benami Act of 1988, remained in force all
\nalong until amnedments interoduced in the year 2016.
\nAdmittedly, the unamended Benami Act, of 1988, did not contain
\nany specific provision for vesting of benami property with
\nCentral Government. Furthermore, there was no provision for an
\nappellate mechanism against action taken by the authorities under
\nthe unamended the Benami Act, 1988 while barring the
\njurisdiction of Civil Court. No powers with the authorities
\nconcerned for its implementation. However, in order to deal with
\nthe benami transactions involving large amounts of unaccounted
\nblack money, a mechanism has been introduced to make operative
\nthe intention and object of the unamended Benami Act of 1988 by
\nthe Benami Amendment Act, 2016; is the plea in support of its
\nretrospective applicability of amended the Benami Act, 1988
\nthrough the Benami Amendment Act, 2016.
\n32. In order to appreciate the rival contentions of the parties on
\nthe question for determination, it will be profitable to take note of
\nthe relevant provisions of the unamended Benami Act of 1988 so
\nalso the relevant provisions of the Benami Amendment Act, 2016
\nalong with text of Article 20 of the Constitution of India, which
\nreads thus:
\nArticle 20 of the Constitution:-
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\n\u201c20. Protection in respect of conviction for offences:
\n(1) No person shall be convicted of any offence except
\nfor violation of the law in force at the time of the
\ncommission of the act charged as an offence, nor be
\nsubjected to a penalty greater than that which might
\nhave been inflicted under the law in force at the time of
\nthe commission of the offence
\n(2) No person shall be prosecuted and punished for the
\nsame offence more than once
\n(3)No person accused of any offence shall be compelled
\nto be a witness against himself.\u201d
\nUnamended Benami Transactions (Prohibition) Act,
\n1988
\n1. Short title, extent and commencement- (1) This
\nAct may be called the Benami Transactions (Prohibition)
\nAct, 1988.
\n(2) It extends to the whole of India except the State of
\nJammu and Kashmir.
\n(3) The provisions of sections 3, 5 and 8 shall come
\ninto force at once, and the remaining provisions of this
\nAct shall be deemed to have come into force on the
\n19th day of May, 1988.
\n2. Definitions- In this Act, unless the context
\notherwise requires,–
\n(a) benami transaction means any transaction in which
\nproperty is transferred to one person for a
\nconsideration paid or provided by another person;
\n(b) prescribed means prescribed by rules made under
\nthis Act;
\n(c) property means property of any kind, whether
\nmovable or immovable, tangible or intangible, and
\nincludes any right or interest in such property.
\n3. Prohibition of benami transactions- (1) No
\nperson shall enter into any benami transaction.
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\n(2) Nothing in sub-section (1) shall apply to the
\npurchase of property by any person in the name of his
\nwife or unmarried daughter and it shall be presumed,
\nunless the contrary is proved, that the said property had
\nbeen purchased for the benefit of the wife of the
\nunmarried daughter.
\n(3) Whoever enters into any benami transaction shall
\nbe punishable with imprisonment for a term which may
\nextend to three years or with fine or with both.
\n(4) Notwithstanding anything contained in the Code of
\nCriminal Procedure, 1973, an offence under this section
\nshall be non-cognizable and bailable.
\n4. Prohibition of the right to recover property
\nheld benami- (1) No suit, claim or action to enforce
\nany right in respect of any property held benami
\nagainst the person in whose name the property is held
\nor against any other person shall lie by or on behalf of
\na person claiming to be the real owner of such
\nproperty.
\n(2) No defence based on any right in respect of any
\nproperty held benami, whether against the person in
\nwhose name the property is held or against any other
\nperson, shall be allowed in any suit, claim or action by
\nor on behalf of a person claiming to be the real owner
\nof such property.
\n(3) Nothing in this section shall apply,–
\n(a) where the person in whose name the property is
\nheld is a coparcener in a Hindu undivided family and
\nthe property is held for the benefit of the coparceners
\nin the family; or
\n(b) where the person in whose name the property is
\nheld is a trustee or other person standing in a fiduciary
\ncapacity, and the property is held for the benefit of
\nanother person for whom he is a trustee or towards
\nwhom he stands in such capacity.
\n5. Property of benami liable to acquisition- (1) All
\nproperties held benami shall be subject to acquisition
\nby such authority, in such manner and after following
\nsuch procedure as may be prescribed.
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\n(2) For the removal of doubts, it is hereby declared
\nthat no amount shall be payable for the acquisition of
\nany property under sub-section (1).
\n8. Power to make rules- (1) The Central
\nGovernment may, by notification in the Official
\nGazette, make rules for carrying out the purposes of
\nthis Act.
\n(2) In particular, and without prejudice to the
\ngenerality of the foregoing power, such rules may
\nprovide for all or any of the following matters,
\nnamely:–
\n(a) the authority competent to acquire properties
\nunder section 5;
\n(b) the manner in which, and the procedure to be
\nfollowed for, the acquisition of properties under section
\n5;
\n(c) any other matter which is required to be, or may
\nbe, prescribed.
\n(3) Every rule made under this Act shall be laid, so
\nsoon as may be after it is made, before each House of
\nParliament, while it is in session for a total period of
\nthirty days which may be comprised in one session or
\nin two or more successive sessions, and if, before the
\nexpiry of the session immediately following the session
\nor the successive sessions aforesaid, both Houses
\nagree in making any modification in the rule or both
\nHouses agree that the rule should not be made, the
\nrule shall thereafter have effect only in such modified
\nform or be of no effect, as the case may be; so,
\nhowever, that any such modification or annulment
\nshall be without prejudice to the validity of anything
\npreviously done under that rule.
\nBenami Transactions (Prohibition) Amendment Act,
\n2016.
\n(1) This Act may be called the Benami Transactions
\n(Prohibition) Amendment Act, 2016.
\n(2) It shall come into force on such date as the Central
\nGovernment may, by notification in the Official
\nGazette, appoint, and different dates may be
\nappointed for different provisions of this Act and any
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\nreference in any such provision to the commencement
\nof this Act shall be construed as a reference to the
\ncoming into force of that provision.
\n(8) “benami property” means any property which is
\nthe subject matter of a benami transaction and also
\nincludes the proceeds from such property;
\n(9) “benami transaction” means,-
\n(A) a transaction or an arrangement-
\n(a) where a property is transferred to, or is held by, a
\nperson, and the consideration for such property has
\nbeen provided, or paid by, another person; and
\n(b) the property is held for the immediate or future
\nbenefit, direct or indirect, of the person who has
\nprovided the consideration, except when the property is
\nheld by-
\n(i) a Karta, or a member of a Hindu undivided family,
\nas the case may be, and the property is held for his
\nbenefit or benefit of other members in the family and
\nthe consideration for such property has been provided
\nor paid out of the known sources of the Hindu
\nundivided family;
\n(ii) a person standing in a fiduciary capacity for the
\nbenefit of another person towards whom he stands in
\nsuch capacity and includes a trustee, executor, partner,
\ndirector of a company, a depository or a participant as
\nan agent of a depository under the Depositories Act,
\n1996 (22 of 1996) and any other person as may be
\nnotified by the Central Government for this purpose;
\n(iii) any person being an individual in the name of his
\nspouse or in the name of any child of such individual
\nand the consideration for such
\nproperty has been provided or paid out of the known
\nsources of the individual;
\n(iv) any person in the name of his brother or sister or
\nlineal ascendant or descendant, where the names of
\nbrother or sister or lineal ascendant or descendant and
\nthe individual appear as joint-owners in any document,
\nand the consideration for such property has been
\nprovided or paid out of the known sources of the
\nindividual; or
\n(B) a transaction or an arrangement in respect of a
\nproperty carried out or made in a fictitious name; or
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\n(C) a transaction or an arrangement in respect of a
\nproperty where the owner of the property is not aware
\nof, or, denies knowledge of, such ownership;
\n(D) a transaction or an arrangement in respect of a
\nproperty where the person providing the consideration
\nis not traceable or is fictitious;
\n(19) “Initiating Officer” means an Assistant
\nCommissioner or a Deputy Commissioner as defined in
\nclauses (9A) and (19A) respectively of section 2 of the
\nIncome-tax Act, 1961 (43 of 1961);
\nIn section 3 of the principal Act,-
\n(a) sub-section (2) shall be omitted;
\n(b) sub-section (3) shall be renumbered as sub-section
\n(2) thereof;
\n(c) after sub-section (2) as so renumbered, the
\nfollowing sub-section shall be inserted, namely:-
\n“(3) Whoever enters into any benami transaction on
\nand after the date of commencement of the Benami
\nTransactions (Prohibition) Amendment Act, 2016, shall,
\nnotwithstanding anything contained in sub-section (2),
\nbe punishable in accordance with the provisions
\ncontained in Chapter VII.”;
\n24. Notice and attachment of property involved in
\nbenami transaction
\n(1) Where the Initiating Officer, on the basis of material
\nin his possession, has reason to believe that any person
\nis a benamidar in respect of a property, he may, after
\nrecording reasons in writing, issue a notice to the
\nperson to show cause within such time as may be
\nspecified in the notice why the property should not be
\ntreated as benami property.
\n(2) Where a notice under sub-section (1) specifies any
\nproperty as being held by a benamidar referred to in
\nthat sub-section, a copy of the notice shall also be
\nissued to the beneficial owner if his identity is known.
\n(3) Where the Initiating Officer is of the opinion that
\nthe person in possession of the property held benami
\nmay alienate the property during the period specified in
\nthe notice, he may, with the previous approval of the
\nApproving Authority, by order in writing, attach
\nprovisionally the property in the manner as may be
\nprescribed, for a period not exceeding ninety days from
\nthe date of issue of notice under sub-section (1).
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\n(4) The Initiating Officer, after making such inquires
\nand calling for such reports or evidence as he deems fit
\nand taking into account all relevant materials, shall,
\nwithin a period of ninety days from the date of issue of
\nnotice under sub-section (1),-
\n(a) where the provisional attachment has been made
\nunder sub-section (3), –
\n(i) pass an order continuing the provisional attachment
\nof the property with the prior approval of the Approving
\nAuthority, till the passing of the order by the
\nAdjudicating Authority under sub-section (3) of section
\n26; or
\n(ii) revoke the provisional attachment of the property
\nwith the prior approval of the Approving Authority;
\n(b) where provisional attachment has not been made
\nunder sub-section (3),-
\n(i) pass an order provisionally attaching the property
\nwith the prior approval of the Approving Authority, till
\nthe passing of the order by the Adjudicating Authority
\nunder sub-section (3) of section 26; or
\n(ii) decide not to attach the property as specified in the
\nnotice, with the prior approval of the Approving
\nAuthority.
\n(5) Where the Initiating Officer passes an order
\ncontinuing the provisional attachment of the property
\nunder sub-clause (i) of clause (a) of sub-section (4) or
\npasses an order provisionally attaching the property
\nunder sub-clause (i) of clause (b) of that sub-section,
\nhe shall, within fifteen days from the date of the
\nattachment, draw up a statement of the case and refer
\nit to the Adjudicating Authority.
\n26. Adjudication of benami property
\n(1) On receipt of a reference under sub-section (5) of
\nsection 24, the Adjudicating Authority shall issue
\nnotice, to furnish such documents, particulars or
\nevidence as is considered necessary on a date to be
\nspecified therein, on the following persons, namely:-
\n(a) the person specified as a benamidar therein;
\n(b) any person referred to as the beneficial owner
\ntherein or identified as such;
\n(c) any interested party, including a banking company;
\n(d) any person who has made a claim in respect of the
\nproperty:
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\nProvided that the Adjudicating Authority shall issue
\nnotice within a period of thirty days from the date on
\nwhich a reference has been received:
\nProvided further that the notice shall provide a period
\nof not less than thirty days to the person to whom the
\nnotice is issued to furnish the information sought.
\n(2) Where the property is held jointly by more than one
\nperson, the Adjudicating Authority shall make all
\nendeavours to serve notice to all persons holding the
\nproperty:
\nProvided that where the notice is served on anyone of
\nthe persons, the service of notice shall not be invalid on
\nthe ground that the said notice was not served to all
\nthe persons holding the property.
\n(3) The Adjudicating Authority shall, after-
\n(a) considering the reply, if any, to the notice issued
\nunder sub-section (1);
\n(b) making or causing to be made such inquiries and
\ncalling for such reports or evidence as it deems fit; and
\n(c) taking into account all relevant materials,
\nprovide an opportunity of being heard to the person
\nspecified as a benamidar therein, the Initiating Officer,
\nand any other person who claims to be the owner of
\nthe property, and, thereafter, pass an order-
\n(i) holding the property not to be a benami property
\nand revoking the attachment order; or
\n(ii) holding the property to be a benami property and
\nconfirming the attachment order, in all other cases.
\n(4) Where the Adjudicating Authority is satisfied that
\nsome part of the properties in respect of which
\nreference has been made to him is benami property,
\nbut is not able to specifically identify such part, he shall
\nrecord a finding to the best of his judgment as to which
\npart of the properties is held benami.
\n(5) Where in the course of proceedings before it, the
\nAdjudicating Authority has reason to believe that a
\nproperty, other than a property referred to it by the
\nInitiating Officer is benami property, it shall
\nprovisionally attach the property and the property shall
\nbe deemed to be a property referred to it on the date
\nof receipt of the reference under sub-section (5) of
\nsection 24.
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\n(6) The Adjudicating Authority may, at any stage of the
\nproceedings, either on the application of any party, or
\nsuo motu, strike out the name of any party improperly
\njoined or add the name of any person whose presence
\nbefore the Adjudicating Authority may be necessary to
\nenable him to adjudicate upon and settle all the
\nquestions involved in the reference.
\n(7) No order under sub-section (3) shall be passed
\nafter the expiry of one year from the end of the month
\nin which the reference under sub-section (5) of section
\n24 was received.
\n(8) The benamidar or any other person who claims to
\nbe the owner of the property may either appear in
\nperson or take the assistance of an authorised
\nrepresentative of his choice to present his case.
\nExplanation.-For the purposes of sub-section (8),
\nauthorised representative means a person authorised in
\nwriting, being-
\n(i) a person related to the benamidar or such other
\nperson in any manner, or a person regularly employed
\nby the benamidar or such other person as the case may
\nbe; or
\n(ii) any officer of a scheduled bank with which the
\nbenamidar or such other person maintains an account
\nor has other regular dealings; or
\n(iii) any legal practitioner who is entitled to practice in
\nany civil court in India; or
\n(iv) any person who has passed any accountancy
\nexamination recognised in this behalf by the Board; or
\n(v) any person who has acquired such educational
\nqualifications as the Board may prescribe for this
\npurpose.
\n53. Penalty for benami transaction
\n(1) Where any person enters into a benami transaction
\nin order to defeat the provisions of any law or to avoid
\npayment of statutory dues or to avoid payment to
\ncreditors, the beneficial owner, benamidar and any
\nother person who abets or induces any person to enter
\ninto the benami transaction, shall be guilty of the
\noffence of benami transaction.
\n(2) Whoever is found guilty of the offence of benami
\ntransaction referred to in sub-section (1) shall be
\npunishable with rigorous imprisonment for a term
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\nwhich shall not be less than one year, but which may
\nextend to seven years and shall also be liable to fine
\nwhich may extend to twenty-five per cent. of the fair
\nmarket value of the property.
\n65. Transfer of pending cases
\n(1) Every suit or proceeding in respect of a benami
\ntransaction pending in any Court (other than a High
\nCourt) or Tribunal or before any forum on the date of
\nthe commencement of this Act shall stand transferred
\nto the Adjudicating Authority or the Appellate Tribunal,
\nas the case may be, having jurisdiction in the matter.
\n(2) Where any suit, or other proceeding stands
\ntransferred to the Adjudicating Authority or the
\nAppellate Tribunal under sub-section (1),-
\n(a) the court, Tribunal or other forum shall, as soon as
\nmay be, after the transfer, forward the records of the
\nsuit, or other proceeding to the Adjudicating Authority
\nor the Appellate Tribunal, as the case may be;
\n(b) the Adjudicating Authority may, on receipt of the
\nrecords, proceed to deal with the suit, or other
\nproceeding, so far as may be, in the same manner as in
\nthe case of a reference made under sub-section (5) of
\nsection 24, from the stage which was reached before
\nthe transfer or from any earlier stage or de novo as the
\nAdjudicating Authority may deem fit.
\n68. Power to make rules
\n(1) The Central Government may, by notification, make
\nrules for carrying out the provisions of this Act.
\n(2) In particular, and without prejudice to the
\ngenerality of the foregoing power, such rules may
\nprovide for all or any of the following matters, namely:-
\n(a) manner of ascertaining the fair market value under
\nclause 16 of section 2;
\n(b) the manner of appointing the Chairperson and the
\nMember of the Adjudicating Authorities under subsection
\n(2) of section 9;
\n(c) the salaries and allowances payable to the
\nChairperson and the Members of the Adjudicating
\nAuthority under sub-section (1) of section 13;
\n(d) the powers and functions of the authorities under
\nsub-section (2) of section 18;
\n(e) other powers of the authorities under clause (f) of
\nsub-section (1) of section 19;
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\n(f) the form and manner of furnishing any information
\nto the authority under sub-section (2) of section 21;
\n(g) the manner of provisional attachment of property
\nunder sub-section (3) of section 24;
\n(h) the procedure for confiscation of benami property
\nunder the second proviso to sub-section (1) of section
\n27;
\n(i) the manner and conditions to receive and manage
\nthe property under sub-section (1) of section 28;
\n(j) the manner and conditions of disposal of property
\nvested in the Central Government under sub-section
\n(3) of section 28;
\n(k) the salaries and allowances payable to and the
\nother terms and conditions of service of the
\nChairperson and other Members of the Appellate
\nTribunal under sub-section (1) of section 33;
\n(l) the manner of prescribing procedure for removal of
\nChairperson or Member under sub-section (4) of
\nsection 35;
\n(m) the salaries and allowances payable to and the
\nother terms and conditions of service of the officers and
\nemployees of the Appellate Tribunal under sub-section
\n(3) of section 39;
\n(n) any power of the Appellate Tribunal under clause (i)
\nof sub-section (2) of section 40;
\n(o) the form in which appeal shall be filed and the fee
\nfor filing the appeal under sub-section (1) of section
\n46;
\n(p) any other matter which is to be, or may be,
\nprescribed, or in respect of which provision is to be
\nmade, by rules.
\n71. Transitional provision
\nThe Central Government may, by notification, provide
\nthat until the Adjudicating Authorities are appointed
\nand the Appellate Tribunal is established under this Act,
\nthe Adjudicating Authority appointed under sub-section
\n(1) of section 6 of the Money-Laundering Act, 2002 (15
\nof 2003) and the Appellate Tribunal established under
\nsection 25 of that Act may discharge the functions of
\nthe Adjudicating Authority and Appellate Tribunal,
\nrespectively, under this Act.’\u2019
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\n33. From a glance of notification dated 25th October, 2016, it is
\nevident that Central Government, in exercise of powers conferred
\nby Section 68 of the Benami Amendment Act, 2016; has framed
\nthe rules and made them effective w.e.f. 1st November, 2016, i.e.
\nthe date from which the Benami Amendment Act, 2016, has been
\nenacted. Thus, it is evident that the Central Government exercised
\nthe powers, to frame the rules, conferred by virtue of Section 68,
\nintroduced vide Benami Amendment Act, 2016, which itself came
\ninto effect from the appointed date i.e. 1st November, 2016.
\nHence, the rules framed, in exercise of power under Section 68,
\nhave been framed and notified by notification dated 25th October,
\n2016, even before the amendement incorporating Section 68, was
\nmade operative that is w.e.f. 1st November, 2016. Therefore, the
\nplea of the petitioners as to the rules having been framed contrary
\nto and in absence of power available to the Central Government
\nunder Section 68 of the Benami Amendment Act, 2016, which was
\nmade operative and effective w.e.f. 1st November, 2016; has
\nsubstance.
\n34. Further, to understand the true character and meaning of
\nBenami Transactions, under the English law and Indian Law; it will
\nbe relevant to take note of the text of para 14 of the Apex Court
\nof the land in the case of Thakur Bhim Singh (dead) By Lrs
\nand Ors. (supra), which reads thus:
\n\u201c14. Under the English law, when real or personal
\nproperty is purchased in the name of a stranger, a
\nresulting trust will be presumed in favour of the person
\nwho is proved to have paid the purchase money in the
\ncharacter of the purchaser. It is, however, open to the
\ntransferee to rebut that presumption by showing that
\nthe intention of the person who contributed the
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\npurchase money was that the transferee should himself
\nacquire the beneficial interest in the property. There is,
\nhowever, an exception to the above rule of presumption
\nmade by the English law when the person who gets the
\nlegal title under the conveyance is either a child or the
\nwife of the person who contributes the purchase money
\nor his grand child, whose father is dead. The rule
\napplicable in such cases is known as the doctrine of
\nadvancement which requires the court to presume that
\nthe purchase is for the benefit of the person in whose
\nfavour the legal title is transferred even though the
\npurchase money may have been contributed by the
\nfather or the husband or the grandfather, as the case
\nmay be, unless such presumption is rebutted by
\nevidence showing that it was the intention of the
\nperson who paid the purchase money that the
\ntransferee should not become the real owner of the
\nproperty in question. The doctrine of advancement is
\nnot in vogue in India. The counterpart of the English
\nlaw of resulting trust referred to above is the Indian law
\nof benami transactions. Two kinds of benami
\ntransactions are generally recognized in India. Where a
\nperson buys a property with his own money but in the
\nname of another person without any intention to
\nbenefit such other person, the transaction is called
\nbenami. In that case, the transferee holds the property
\nfor the benefit of the person who has contributed the
\npurchase money, and he is the real owner. The second
\ncase which is loosely termed as a benami transaction is
\na case where a person who is the owner of the property
\nexecutes a conveyance in favour of another without the
\nintention of transferring the title to the property
\nthereunder. In this case, the transferor continues to be
\nthe real owner. The difference between the two kinds of
\nbenami transactions referred to above lies in the fact
\nthat whereas in the former case, there is an operative
\ntransfer from the transferor to the transferee though
\nthe transferee holds the property for the benefit of the
\nperson who has contributed the purchase money, in the
\nlatter case, there is no operative transfer at all and the
\ntitle rests with the transferor notwithstanding the
\nexecution of the conveyance. One common feature,
\nhowever, in both these cases is that the real title is
\ndivorced from the ostensible title and they are vested
\nin different persons. The question whether a
\ntransaction is a benami transaction or not mainly
\ndepends upon the intention of the person who has
\ncontributed the purchase money in the former case and
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\nupon the intention of the person who has executed the
\nconveyance in the latter case. The principle underlying
\nthe former case is also statutorily recognized in Section
\n82 of the Indian Trusts Act, 1882 which provides that
\nwhere property is transferred to one person for a
\nconsideration paid or provided by another person and it
\nappears that such other person did not intend to pay or
\nprovide such consideration for the benefit of the
\ntransferee, the transferee must hold the property for
\nthe benefit of the person paying or providing the
\nconsideration. This view is in accord with the following
\nobservations made by this Court in Meenakshi Mills.
\nMadurai v. The Commissioner of Income-Tax, Madras
\nMANU\/SC\/0044\/1956 : [1956]1SCR691 .:
\nIn this connection, it is necessary to note that the word
\n‘benami’ is used to denote two classes of transactions
\nwhich differ from each other in their legal character and
\nincidents. In one sense, it signifies a transaction which
\nis real, as for example when A sells properties to B but
\nthe sale deed mentions X as the purchaser. Here the
\nsale itself is genuine, but the real purchaser is B, X
\nbeing his benamidar. This is the class of transactions
\nwhich is usually termed as benami. But the word
\n‘benami’ is also occasionally used, perhaps not quite
\naccurately, to refer to a sham transaction, as for
\nexample, when A purports to sell his property to B
\nwithout intending that his title should cease or pass to
\nB. The fundamental difference between these two
\nclasses of transactions is that whereas in the former
\nthere is an operative transfer resulting in the vesting of
\ntitle in the transferee, in the latter there is none such,
\nthe transferor continuing to retain the title
\nnotwithstanding the execution of the transfer deed. It is
\nonly in the former class of cases that it would be
\nnecessary, when a dispute arises as to whether the
\nperson named in the deed is the real transferee or B, to
\nenquire into the question as to who paid the
\nconsideration for the transfer, X or B. But in the latter
\nclass of cases, when the question is whether the
\ntransfer is genuine or sham, the point for decision
\nwould be, not who paid the consideration but whether
\nany consideration was paid.\u201d
\n35. In the case of Calcutta Discount Company Limited (supra),
\nSupreme Court, held thus:
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\n6. To confer jurisdiction under this section to issue
\nnotice in respect of assessments beyond the period of
\nfour years, but within a period of eight years, from the
\nend of the relevant year two conditions have therefore
\nto be satisfied. The first is that the Income-tax Officer
\nmust have reason to believe that income, profits or
\ngains chargeable to income-tax have been underassessed.
\nThe second is that he must have also reason
\nto believe that such “under assessment” has occurred
\nby reason of either (i) omission or failure on the part of
\nan assessee to make a return of his income under
\nsection 22, or (ii) omission or failure on the part of an
\nassessee to disclose fully and truly and all material
\nfacts necessary for his assessment for that year. Both
\nthese conditions are conditions precedent to be
\nsatisfied before the Income-tax Officer could have
\njurisdiction to issue a notice for the assessment or
\nreassessment beyond the period of four years but
\nwithin the period of eight years, from the end of the
\nyear in question.
\n24. We are therefore bound to hold that the conditions
\nprecedent to the exercise of jurisdiction under section
\n34 of the Income-tax Act did not exist and the Incometax
\nOfficer had therefore no jurisdiction to issue the
\nimpugned notices under section 34 in respect of the
\nyears 1942-43, 1943-44 and 1944-45 after the expiry
\nof four years.
\n25. Mr. Sastri argued that the question whether the
\nIncome-tax Officer had reason to believe that underassessment
\nhad occurred “by reason of non-disclosure
\nof material facts” should not be investigated by the
\ncourts in an application under article 226. Learned
\nCounsel seems to suggest that as soon as the Incometax
\nOfficer has reason to believe that there has been
\nunder-assessment in any year he has jurisdiction to
\nstart proceedings under section 34 by issuing a notice
\nprovided 8 years have not elapsed from the end of the
\nyear in question, but whether the notices should have
\nbeen issued within a period of 4 years or not is only a
\nquestion of limitation which could and should properly
\nbe raised in the assessment proceedings. It is wholly
\nincorrect however to suppose that this is a question of
\nlimitation only not touching the question of jurisdiction.
\nThe scheme of the law clearly is that where the
\nIncome-tax Officer has reason to believe that an under
\nassessment has resulted from non-disclosure he shall
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\nhave jurisdiction to start proceedings for re-assessment
\nwithin a period of 8 years; and where he has reason to
\nbelieve that an under assessment has resulted from
\nother causes he shall have jurisdiction to start
\nproceedings for reassessment within 4 years. Both the
\nconditions, (i) the Income-tax Officer having reason to
\nbelieve that there has been under assessment and (ii)
\nhis having reason to believe that such under
\nassessment has resulted from non-disclosure of
\nmaterial facts, must co-exist before the Income-tax
\nOfficer has jurisdiction to start proceedings after the
\nexpiry of 4 years. The argument that the Court ought
\nnot to investigate the existence of one of these
\nconditions, viz., that the Income-tax Officer has reason
\nto believe that under assessment has resulted from
\nnon-disclosure of material facts cannot therefore be
\naccepted.
\n26. Mr. Sastri next pointed out that at the stage when
\nthe Income-tax Officer issued the notices he was not
\nacting judicially or quasi-judicially and so a writ of
\ncertiorari or prohibition cannot issue.
\nIt is well settled however that though the writ of
\nprohibition or certiorari will not issue against an
\nexecutive authority, the High Courts have power to
\nissue in a fit case an order prohibiting an executive
\nauthority from acting without jurisdiction. Where such
\naction of an executive authority from acting without
\njurisdiction subjects or is likely to subject a person to
\nlengthy proceedings and unnecessary harassment, the
\nHigh Courts, it is well settled, will issue appropriate
\norders or directions to prevent such consequences.
\n27. Mr. Sastri mentioned more than once the fact that
\nthe company would have sufficient opportunity to raise
\nthis question, viz., whether the Income-tax Officer had
\nreason to believe that under assessment had resulted
\nfrom non-disclosure of material facts, before the
\nIncome-tax Officer himself in the assessment
\nproceedings and, if unsuccessful there, before the
\nappellate Officer or the appellate tribunal or in the High
\nCourt under section 66(2) of the Indian Income-tax Act.
\nThe existence of such alternative remedy is not however
\nalways a sufficient reason for refusing a party quick
\nrelief by a writ or order prohibiting an authority acting
\nwithout jurisdiction from continuing such action.
\n28. In the present case the company contends that the
\nconditions precedent for the assumption of jurisdiction
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\nunder section 34 were not satisfied and came to the
\ncourt at the earliest opportunity. There is nothing in its
\nconduct which would justify the refusal of proper relief
\nunder article 226. When the Constitution confers on the
\nHigh Courts the power to give relief it becomes the duty
\nof the courts to give such relief in fit cases and the
\ncourts would be failing to perform their duty if relief is
\nrefused without adequate reasons. In the present case
\nwe can find no reason for which relief should be refused.
\n29. We have therefore come to the conclusion that the
\ncompany was entitled to an order directing the Incometax
\nOfficer not to take any action on the basis of the
\nthree impugned notices.
\n30. We are informed that assessment orders were in
\nfact made on March 25, 1952, by the Income-tax Officer
\nin the proceedings started on the basis of these
\nimpugned notices. This was done with the permission of
\nthe learned Judge before whom the petition under
\narticle 226 was pending, on the distinct understanding
\nthat these orders would be without prejudice to the
\ncontentions of the parties on the several questions
\nraised in the petition and without prejudice to the orders
\nthat may ultimately be passed by the Court. The fact
\nthat the assessment orders have already been made
\ndoes not therefore affect the company’s right to obtain
\nrelief under article 226. In view however of the fact that
\nthe assessment orders have already been made we
\nthink it proper that in addition to an order directing the
\nIncome-tax Officer not to take any action on the basis
\nof the impugned notices a further order quashing the
\nassessment made be also issued.
\n36. In the case of Commissioner of Income Tax vs. Vatika
\nTownship Private Limited (supra), the Supreme Court,
\nobserved thus:
\n27. A legislation, be it a statutory Act or a statutory
\nRule or a statutory Notification, may physically consists
\nof words printed on papers. However, conceptually it is
\na great deal more than an ordinary prose. There is a
\nspecial peculiarity in the mode of verbal communication
\nby a legislation. A legislation is not just a series of
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\nstatements, such as one finds in a work of fiction\/non
\nfiction or even in a judgment of a court of law. There is
\na technique required to draft a legislation as well as to
\nunderstand a legislation. Former technique is known as
\nlegislative drafting and latter one is to be found in the
\nvarious principles of ‘Interpretation of Statutes’. Vis-\u00e0vis
\nordinary prose, a legislation differs in its
\nprovenance, lay-out and features as also in the
\nimplication as to its meaning that arise by presumptions
\nas to the intent of the maker thereof.
\n28. Of the various rules guiding how a legislation has to
\nbe interpreted, one established rule is that unless a
\ncontrary intention appears, a legislation is presumed not
\nto be intended to have a retrospective operation. The
\nidea behind the rule is that a current law should govern
\ncurrent activities. Law passed today cannot apply to the
\nevents of the past. If we do something today, we do it
\nkeeping in view the law of today and in force and not
\ntomorrow’s backward adjustment of it. Our belief in the
\nnature of the law is founded on the bed rock that every
\nhuman being is entitled to arrange his affairs by relying
\non the existing law and should not find that his plans
\nhave been retrospectively upset. This principle of law is
\nknown as lex prospicit non respicit: law looks forward
\nnot backward. As was observed in Phillips v. Eyre
\n(1870) LR 6 QB 1, a retrospective legislation is contrary
\nto the general principle that legislation by which the
\nconduct of mankind is to be regulated when introduced
\nfor the first time to deal with future acts ought not to
\nchange the character of past transactions carried on
\nupon the faith of the then existing law.
\n29. The obvious basis of the principle against
\nretrospectivity is the principle of ‘fairness’, which must
\nbe the basis of every legal rule as was observed in the
\ndecision reported in L’Office Cherifien des Phosphates v.
\nYamashita-Shinnihon Steamship Co. Ltd. (1994) 1 AC
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\n486. Thus, legislations which modified accrued rights or
\nwhich impose obligations or impose new duties or
\nattach a new disability have to be treated as prospective
\nunless the legislative intent is clearly to give the
\nenactment a retrospective effect; unless the legislation
\nis for purpose of supplying an obvious omission in a
\nformer legislation or to explain a former legislation. We
\nneed not note the cornucopia of case law available on
\nthe subject because aforesaid legal position clearly
\nemerges from the various decisions and this legal
\nposition was conceded by the counsel for the parties.
\nIn any case, we shall refer to few judgments containing
\nthis dicta, a little later.
\n32. Let us sharpen the discussion a little more. We may
\nnote that under certain circumstances, a particular
\namendment can be treated as clarificatory or
\ndeclaratory in nature. Such statutory provisions are
\nlabeled as “declaratory statutes”. The circumstances
\nunder which a provision can be termed as “declaratory
\nstatutes” is explained by Justice G.P. Singh in the
\nfollowing manner:
\n\u201cDeclaratory statutes
\nThe presumption against retrospective operation is not
\napplicable to declaratory statutes. As stated in CRAIES
\nand approved by the Supreme Court: “For modern
\npurposes a declaratory Act may be defined as an Act to
\nremove doubts existing as to the common law, or the
\nmeaning or effect of any statute. Such Acts are usually
\nheld to be retrospective. The usual reason for passing a
\ndeclaratory Act is to set aside what Parliament deems to
\nhave been a judicial error, whether in the statement of
\nthe common law or in the interpretation of statutes.
\nUsually, if not invariably, such an Act contains a
\npreamble, and also the word ‘declared’ as well as the
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\nword ‘enacted’. But the use of the words ‘it is declared’
\nis not conclusive that the Act is declaratory for these
\nwords may, at times, be used to introduced new rules of
\nlaw and the Act in the latter case will only be amending
\nthe law and will not necessarily be retrospective. In
\ndetermining, therefore, the nature of the Act, regard
\nmust be had to the substance rather than to the form. If
\na new Act is ‘to explain’ an earlier Act, it would be
\nwithout object unless construed retrospective. An
\nexplanatory Act is generally passed to supply an obvious
\nomission or to clear up doubts as to the meaning of the
\nprevious Act. It is well settled that if a statute is
\ncurative or merely declaratory of the previous law
\nretrospective operation is generally intended. The
\nlanguage ‘shall be deemed always to have meant’ is
\ndeclaratory, and is in plain terms retrospective. In the
\nabsence of clear words indicating that the amending Act
\nis declaratory, it would not be so construed when the
\npre-amended provision was clear and unambiguous. An
\namending Act may be purely clarificatory to clear a
\nmeaning of a provision of the principal Act which was
\nalready implicit. A clarificatory amendment of this
\nnature will have retrospective effect and, therefore, if
\nthe principal Act was existing law which the Constitution
\ncame into force, the amending Act also will be part of
\nthe existing law.
\nThe above summing up is factually based on the
\njudgments of this Court as well as English decisions.
\n37. When we examine the insertion of proviso in Section
\n113 of the Act, keeping in view the aforesaid principles,
\nour irresistible conclusion is that the intention of the
\nlegislature was to make it prospective in nature. This
\nproviso cannot be treated as declaratory\/statutory or
\ncurative in nature.
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\n42.2 Thus, it was a conscious decision of the
\nlegislature, even when the legislature knew the
\nimplication thereof and took note of the reasons which
\nled to the insertion of the proviso, that the amendment
\nis to operate prospectively. Learned Counsel appearing
\nfor the Assessees sagaciously contrasted the aforesaid
\nstipulation while effecting amendment in Section 113 of
\nthe Act, with various other provisions not only in the
\nsame Finance Act but Finance Acts pertaining to other
\nyears where the legislature specifically provided such
\namendment to be either retrospective or clarificatory.
\nIn so far as amendment to Section 113 is concerned,
\nthere is no such language used and on the contrary,
\nspecific stipulation is added making the provision
\neffective from 1st June, 2002.
\n44. Finance Act, 2003, again makes the position clear
\nthat surcharge in respect of block assessment of
\nundisclosed income was made prospective. Such a
\nstipulation is contained in second proviso to Subsection
\n(3) of Section 2 of Finance Act, 2003. This
\nproviso reads as under:
\n\u201cProvided further that the amount of incometax
\ncomputed in accordance with the
\nprovisions of Section 113 shall be increased
\nby a surcharge for purposes of the Union as
\nprovided in Paragraph A, B, C, D or E, as the
\ncase may be, of Part III of the First Schedule
\nof the Finance Act of the year in which the
\nsearch is initiated Under Section 132 or
\nrequisition is made Under Section 132A of
\nthe income-tax Act.\u201d
\nAddition of this proviso in the Finance Act, 2003 further
\nmakes it clear that such a provision was necessary to
\nprovide for surcharge in the cases of block assessments
\nand thereby making it prospective in nature. The charge
\nin respect of the surcharge, having been created for the
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\nfirst time by the insertion of the proviso to Section 113,
\nis clearly a substantive provision and hence is to be
\nconstrued prospective in operation. The amendment
\nneither purports to be merely clarificatory nor is there
\nany material to suggest that it was intended by
\nParliament. Furthermore, an amendment made to a
\ntaxing statute can be said to be intended to remove
\n‘hardships’ only of the Assessee, not of the Department.
\nOn the contrary, imposing a retrospective levy on the
\nAssessee would have caused undue hardship and for
\nthat reason Parliament specifically chose to make the
\nproviso effective from 1.6.2002.
\n37. In the case of Commissioner of Prakash and Ors. vs.
\nPhulavati and Ors. (supra), the Apex Court of the land, held thus:
\n17. The text of the amendment itself clearly provides
\nthat the right conferred on a ‘daughter of a coparcener’
\nis ‘on and from the commencement of Hindu
\nSuccession (Amendment) Act, 2005’. Section 6(3) talks
\nof death after the amendment for its applicability. In
\nview of plain language of the statute, there is no scope
\nfor a different interpretation than the one suggested by
\nthe text of the amendment. An amendment of a
\nsubstantive provision is always prospective unless
\neither expressly or by necessary intendment it is
\nretrospective Shyam Sunder v. Ram Kumar (2001) 8
\nSCC 24, Paras 22 to 27. In the present case, there is
\nneither any express provision for giving retrospective
\neffect to the amended provision nor necessary
\nintendment to that effect. Requirement of partition
\nbeing registered can have no application to statutory
\nnotional partition on opening of succession as per
\nunamended provision, having regard to nature of such
\npartition which is by operation of law. The intent and
\neffect of the Amendment will be considered a little
\nlater. On this finding, the view of the High Court cannot
\nbe sustained.
\n18. Contention of the Respondents that the
\nAmendment should be read as retrospective being a
\npiece of social legislation cannot be accepted. Even a
\nsocial legislation cannot be given retrospective effect
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\nunless so provided for or so intended by the legislature.
\nIn the present case, the legislature has expressly made
\nthe Amendment applicable on and from its
\ncommencement and only if death of the coparcener in
\nquestion is after the Amendment. Thus, no other
\ninterpretation is possible in view of express language of
\nthe statute. The proviso keeping dispositions or
\nalienations or partitions prior to 20th December, 2004
\nunaffected can also not lead to the inference that the
\ndaughter could be a coparcener prior to the
\ncommencement of the Act. The proviso only means
\nthat the transactions not covered thereby will not affect
\nthe extent of coparcenary property which may be
\navailable when the main provision is applicable.
\nSimilarly, Explanation has to be read harmoniously with
\nthe substantive provision of Section 6(5) by being
\nlimited to a transaction of partition effected after 20th
\nDecember, 2004. Notional partition, by its very nature,
\nis not covered either under proviso or under Subsection
\n5 or under the Explanation.
\n38. In the case of Sukhdev Singh vs. State of Haryana:
\n(supra), the Supreme Court, observed thus:
\n\u201cAnother Bench of this Court in the case of Jawahar
\nSingh @ Bhagat Ji. v. State of GNCT of Delhi (2009) 6
\nSCC 490], while dealing with the amendments of
\nSection 21 of the NDPS Act, the Court took the view
\nthat amendments made by Act 9 of 2001 could not be
\ngiven retrospective effect as if it was so given, it would
\nwarrant a retrial which is not the object of the Act. The
\nCourt held as under:
\n\u201c9. It is now beyond any doubt or dispute
\nthat the quantum of punishment to be
\ninflicted on an accused upon recording a
\njudgment of conviction would be as per the
\nlaw which was prevailing at the relevant
\ntime. As on the date of commission of the
\noffence and\/or the date of conviction, there
\nwas no distinction between a small
\nquantity and a commercial quantity,
\nquestion of infliction of a lesser sentence
\nby reason of the provisions of the
\namending Act, in our considered opinion,
\nwould not arise.
\n10. It is also a well-settled principle of law
\nthat a substantive provision unless
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\nspecifically provided for or otherwise
\nintended by Parliament should be held to
\nhave a prospective operation. One of the
\nfacets of the rule of law is also that all
\nstatutes should be presumed to have a
\nprospective operation only.\u201d
\n18. No law can be interpreted so as to frustrate the
\nvery basic rule of law. It is a settled principle of
\ninterpretation of criminal jurisprudence that the
\nprovisions have to be strictly construed and cannot be
\ngiven a retrospective effect unless legislative intent and
\nexpression is clear beyond ambiguity. The amendments
\nto criminal law would not intend that there should be
\nundue delay in disposal of criminal trials or there
\nshould be retrial just because the law has changed.
\nSuch an approach would be contrary to the doctrine of
\nfinality as well as avoidance of delay in conclusion of
\ncriminal trial.\u201d
\n39. In the case of J.S. Yadav vs. State of U.P. and Ors.
\n(supra), the Supreme Court held thus:
\n24. The Legislature is competent to unilaterally alter
\nthe service conditions of the employee and that can be
\ndone with retrospective effect also, but the intention of
\nthe Legislature to apply the amended provisions with
\nretrospective effect must be evident from the
\nAmendment Act itself expressly or by necessary
\nimplication. The aforesaid power of the Legislature is
\nqualified further that such a unilateral alteration of
\nservice conditions should be in conformity with legal
\nand constitutional provisions. Roshan Lal Tandon v.
\nUnion of India and Ors. AIR 1967 SC 1889; State of
\nMysore v. Krishna Murthy and Ors. AIR 1973 SC 1146;
\nRaj Kumar v. Union of India and Ors. AIR 1975 SC
\n1116; Ex-Capt. K.C. Arora and Anr. v. State of Haryana
\nand Ors. (1984) 3 SCC 281; and State of Gujarat and
\nAnr. v. Raman Lal Keshav Lal Soni and Ors. AIR 1984
\nSC 161.
\n25. In Union of India and Ors. v. Tushar Ranjan
\nMohanty and Ors. (1994) 5 SCC 450, this Court
\ndeclared the amendment with retrospective operation
\nas ultra vires as it takes away the vested rights of the
\nPetitioners therein and thus, was unreasonable,
\narbitrary and violative of Articles 14 and 16 of the
\nConstitution. While deciding the said case, this Court
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\nplaced very heavy reliance on the judgment in P.D.
\nAggarwal and Ors. v. State of U.P. and Ors.AIR 1987 SC
\n1676, wherein this Court has held as under:
\n\u201c18. …the Government has power to make
\nretrospective amendments to the Rules but
\nif the Rules purport to take away the
\nvested rights and are arbitrary and not
\nreasonable then such retrospective
\namendments are subject to judicial
\nscrutiny if they have infringed Articles 14
\nand 16 of the Constitution.\u201d
\n40. In the case of Shakti Tubes Ltd. vs. State of Bihar and
\nOrs.:(supra), the Apex Court of the land observed thus:
\n\u201c24. Generally, an Act should always be regarded as
\nprospective in nature unless the legislature has clearly
\nintended the provisions of the said Act to be made
\napplicable with retrospective effect.
\n\u201c13. It is a cardinal principle of construction
\nthat every statute is prima facie prospective
\nunless it is expressly or by necessary
\nimplication made to have a retrospective
\noperation. The aforesaid rule in general is
\napplicable where the object of the statute is
\nto affect vested rights or to impose new
\nburdens or to impair existing obligations.
\nUnless there are words in the statute
\nsufficient to show the intention of the
\nlegislature to affect existing rights, it is
\ndeemed to be prospective only — “nova
\nConstitution futuris formam imponere debet
\nnon praeteritis” — a new law ought to
\nregulate what is to follow, not the past.
\n(See Principles of Statutory Interpretation
\nby Justice G.P. Singh, 9th Edn., 2004 at p.
\n438.). It is not necessary that an express
\nprovision be made to make a statute
\nretrospective and the presumption against
\nretrospectivity may be rebutted by
\nnecessary implication especially in a case
\nwhere the new law is made to cure an
\nacknowledged evil for the benefit of the
\ncommunity as a whole (ibid., p. 440).
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\n25. There is no dispute with regard to the fact that the
\nAct in question is a welfare legislation which was
\nenacted to protect the interest of the suppliers
\nespecially suppliers of the nature of a small scale
\nindustry. But, at the same time, the intention and the
\npurpose of the Act cannot be lost sight of and the Act in
\nquestion cannot be given a retrospective effect so long
\nas such an intention is not clearly made out and
\nderived from the Act itself.\u201d
\n41. In the case of O. Konavalov vs. Commander, Coast
\nGuard Region and Ors.: (supra), the Supreme Court observed
\nthus:
\n\u201cPOWER TO CONFISCATE
\n30. The power to confiscate and the consequent
\nforfeiture of rights or interests are drastic, being penal
\nin nature. Statutes conferring such powers must be
\nread very strictly. There can be no exercise of power
\nunder such statutes by way of extension or implication.
\nNo expansive meaning can be given therefore to
\nSection 115 of the Customs Act merely from the
\ndictionary meaning the word absolute as has been done
\nby the Division Bench of the High Court.
\n42. In the case of M\/S Pepsi Foods Ltd. and Ors. vs. Special
\nJudicial Magistrate and Ors.(supra), the Supreme Court held
\nthus:
\n\u201c29. No doubt the magistrate can discharge the
\naccused at any stage of the trial if he considers the
\ncharge to be groundless, but that does not mean that
\nthe accused cannot approach the High Court under
\nSection 482 of the Code or Article 227 of the
\nConstitution to have the proceeding quashed against
\nhim when the complaint does not make out any case
\nagainst him and still he must undergo the agony of a
\ncriminal trial. It was submitted before us on behalf of
\nthe State that in case we find that the High Court failed
\nto exercise its jurisdiction the matter should be
\nremanded back to it to consider if the complaint and
\nthe evidence on record did not make out any case
\nagainst the appellants. If, however, we refer to the
\nimpugned judgment of the High Court it has come to
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\nthe conclusion, though without referring to any
\nmaterial on record, that “in the present case it cannot
\nbe said at this stage that the allegations in the
\ncomplaint are so absurd and inherently improbable on
\nthe basis of which no prudent man can ever reach a
\njust conclusion that there exists no sufficient ground for
\nproceedings against the accused.” We do not think that
\nthe High Court was correct in coming to such a
\nconclusion and in coming to that it has also foreclosed
\nthe matter for the magistrate as well, as the magistrate
\nwill not give any different conclusion on an application
\nfiled under Section 245 of the Code. The High Court
\nsays that the appellants could very well appear before
\nthe court and move an application under Section
\n245(2) of the Code and that the magistrate could
\ndischarge them if he found the charge to be groundless
\nand at the same time it has itself returned the finding
\nthat there are sufficient grounds for proceeding against
\nthe appellants. If we now refer to the facts of the case
\nbefore us it is clear to us that not only that allegations
\nagainst the appellants do not make out any case for an
\noffence under Section 7 of the Act and also that there
\nis no basis for the complainant to make such
\nallegations. The allegations in the complaint merely
\nshow that the appellants have given their brand name
\nto “Residency Foods and Beverages Ltd.” for bottling
\nthe beverage “Lehar Pepsi ‘. The complaint does not
\nshow what is the role of the appellants in the
\nmanufacture of the beverage which is said to be
\nadulterated. The only allegation is that the appellants
\nare the manufacturer of bottle. There is no averment as
\nto how the complainant could say so and also if the
\nappellants manufactured the alleged bottle or its
\ncontents. His sole information is from A.K. Jain who is
\nimpleaded as accused No. 3. The preliminary evidence
\non which the 1st respondent relied in issuing summon
\nto the appellants also does not show as to how it could
\nbe said that the appellants are manufacturers of either
\nthe bottle or the beverage or both. There is another
\naspect of the matter. The Central Government in the
\nexercise of their powers under Section 3 of the
\nEssential Commodities Act, 1955 made Fruit Products
\nOrder, 1955 (for short, the “Fruit Order”). It is not
\ndisputed that the beverage in the question is a “fruit
\nproduct” within the meaning of Clause (2)(b) of the
\nFruit Order and that for the manufacture thereof
\ncertain licence is required. The Fruit Order defines the
\nmanufacturer and also sets out as to what the
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\nmanufacturer is required to do in regard to the
\npackaging, marking and labelling of containers of fruit
\nproducts. One of such requirement is that when a
\nbottle is used in packing any fruit products, it shall be
\nso sealed that it cannot be opened without destroying
\nthe licence number and the special identification mark
\nof the manufacturer to be displayed on the top or neck
\nof the bottle. The licence number of manufacturer shall
\nalso be exhibited prominently on the side label on such
\nbottle [Clause (8) (1) (b) ]. Admittedly, the name of
\nthe first appellant is not mentioned as a manufacturer
\non the top cap of the bottle. It is not necessary to refer
\nin detail to other requirements of the Fruit Order and
\nthe consequences of infringement of the Order and to
\nthe penalty to which the manufacturer would be
\nexposed under the provisions of the Essential
\nCommodities Act, 1955. We may, however, note that in
\nThe Hamdard Dawakhana .(WAKF) Delhi and Anr. v.
\nThe Union of India and Ors.,[1965]2SCR192 , an
\nargument was raised that the Fruit Order was invalid
\nbecause its provision indicated that it was an Order
\nwhich could have been appropriately issued under the
\nPrevention of Food Adulteration Act, 1954. This Court
\nnegatived this plea and said that the Fruit order was
\nvalidly issued under the Essential Commodities Act.
\nWhat we find in the present case is that there was
\nnothing on record to show if the appellants held the
\nlicence for the manufacture of the offending beverage
\nand if, as noted above, the first appellant was the
\nmanufacturer thereof.
\n29. It is no comfortable thought for the appellants to
\nbe told that they could appear before the court which is
\nat a far off place in the Ghazipur in the State of Uttar
\nPradesh, seek their release on bail and then to either
\nmove an application under Section 245(2) of the Code
\nor to face trial when the complaint and the preliminary
\nevidence recorded makes out no case against them. It
\nis certainly one of those cases where there is an abuse
\nof the process of the law and the courts and the High
\nCourt should not have shied away in exercising its
\njurisdiction. Provisions of Articles 226 and 227 of the
\nConstitution and Section 482 of the Code are devised
\nto advance justice and not to frustrate it. In our view
\nHigh Court should not have adopted such a rigid
\napproach which certainly has led to miscarriage of
\njustice in the case. Power of judicial review is
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\ndiscretionary but this was a case where the High Court
\nshould have exercised it.\u201d
\n43. In the case of Collector of Central Excise, Ahmedabad vs.
\nOrient Fabrics Pvt. Ltd.: (supra) , the Apex Court of the land,
\nheld thus:
\n\u201c3. The Tribunal relying upon the decision in the case
\nof Pioneer Silk Mills Pvt. Ltd. v. Union of India,
\nreported in 1995(80)ELT507(Del) , allowed the
\nappeals, holding that the provisions of Central Excise
\nAct and the Rules made thereunder, so far as they
\nrelate to confiscation cannot be made applicable for
\nthe breach of provisions of the Act. It is against the
\nsaid judgment and order of the Tribunal, the appellant
\nis in appeal before us.
\n4. Mr. S.R. Bhat, learned counsel appearing for the
\nappellant, urged that the view taken by the Tribunal in
\nallowing the appeals was erroneous inasmuch as it is
\ncontrary to the decisions in the case of Khema & Co.
\n(Agencies) Pvt. Ltd. v. State of Maharashtra, reported
\nin [1975]3SCR753 and Commissioner of Central Excise
\nv. Ashok Fashion Ltd., reported in
\n2002(141)ELT606(Guj).
\n5. In order to appreciate the issue, it is relevant to set
\nout the Sub-section (3) of Section 3 of the Act, as
\napplicable in this matter and which runs as under:
\n“SECTION 3: Levy and collection of
\nadditional duties:
\n(1)..\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026
\n(2)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026
\n(3) The provisions of the Central Excise and
\nSalt Act, 1944 and the rules made
\nthereunder including those relating to
\nrefunds and exemptions from duty shall, so
\nfar as may be apply in relation to the levy
\nand collection of the additional duties as
\nthey apply in relation to the levy and
\ncollection of duties as they apply in relation
\nto the levy and collection of the duties of
\nexcise on the goods specified in Sub-section
\n(1).”
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\n6. A perusal of the said provision shows that the breach
\nof the provision of the Act has not been made penal or
\nan offence and no power has been given to confiscate
\nthe goods. It only provides for application of the
\nprocedural provisions of the Central Excise and Salt
\nAct, 1944 and the Rules made thereunder. It is no
\nlonger res integra that when the breach of the
\nprovisions of the Act is penal in nature or a penalty is
\nimposed by way of additional tax, the constitutional
\nmandate requires a clear authority of law for imposition
\nfor the same. Article 265 of the Constitution provides
\nthat no tax shall be levied or collected except by
\nauthority of law. The authority has to be specific and
\nexplicit and expressly provided. The Act created liability
\nfor additional duty for excise, but created no liability for
\nany penalty. That being so, the confiscation
\nproceedings against the respondents were unwarranted
\nand without authority of law.
\n7. The Parliament by reason of Section 63(a) of the
\nFinance Act, 1994 (Act No. 32 of 1994) substituted
\nSub-section (3) of Section 3 of the said Act, which now
\nreads as under:
\n“3. Levy and collection of Additional
\nDuties:-
\n(1)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..
\n(2)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.
\n(3) The provisions of the [Central Excise
\nAct, 1944] (1 of 1944), and the rules made
\nthereunder, including those relating to
\nrefunds, exemptions from duty, offences
\nand penalties, shall, so far as may be,
\napply in relation to the levy and collection
\nof the additional duties as they apply in
\nrelation to the levy and collection of the
\nduties of excise on the goods specified in
\nSub-section (1).”
\n19. It is now a well settled principles of law that
\nexpropriatory legislation must be strictly construed (see
\nD.L.F. Qutab Enclave Complex Educational Charitable
\nTrust v. State of Haryana and Ors., reported in :
\n[2003]2SCR1 ). It is further trite that a penal statute
\nmust receive strict construction.
\n20. The matter may be considered from another angle.
\nThe Parliament by reason of the Amending Act 32 of
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\n1994 consciously brought in the expression offences
\nand penalties’ in Sub-section (3) of Section 3 of the
\nAct. The mischief rule, if applied, would clearly show
\nthat such amendment was brought with a view to
\nremedy the defect contained in the unamended
\nprovisions of Sub-section (3) of Section 3 of the Act.
\nOffences having regard to the provisions contained in
\nArticle 20 of the Constitution of India cannot be given a
\nretrospective effect. In that view of the matter too Subsection
\n(3) of Section 3 of the Act as amended cannot
\nbe said to have any application at all.
\n21. In view of the aforesaid decisions, it must be held
\nthat the confiscation proceedings taken against the
\nrespondents and the penalty imposed upon them were
\ntotally without the authority of law and were rightly set
\naside by the Tribunal.\u201d
\n44. In the case of Suhas H. Pophale vs. Oriental Insurance
\nCo. Ltd. and its Estate Officer: (supra) , the Supreme Court,
\nheld thus:
\n\u201c45. It has been laid down by this Court time and again
\nthat if there are rights created in favour of any person,
\nwhether they are property rights or rights arising from
\na transaction in the nature of a contract, and
\nparticularly if they are protected under a statute, and if
\nthey are to be taken away by any legislation, that
\nlegislation will have to say so specifically by giving it a
\nretrospective effect. This is because prima facie every
\nlegislation is prospective (see para 7 of the Constitution
\nBench judgment in Janardan Reddy v. The State
\nreported in AIR 1951 SC 124). In the instant case, the
\nAppellant was undoubtedly protected as a ‘deemed
\ntenant’ under Section 15A of the Bombay Rent Act,
\nprior to the merger of the erstwhile insurance company
\nwith a Government Company, and he could be removed
\nonly by following the procedure available under the
\nBombay Rent Act. A ‘deemed tenant’ under the Bombay
\nRent Act, continued to be protected under the
\nsucceeding Act, in view of the definition of a ‘tenant’
\nunder Section 7(15)(a)(ii) of the Maharashtra Rent
\nControl Act, 1999. Thus, as far as the tenants of the
\npremises which are not covered under the Public
\nPremises Act are concerned, those tenants who were
\ndeemed tenants under the Bombay Rent Act continued
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\nto have their protection under the Maharashtra Rent
\nControl Act, 1999. Should the coverage of their
\npremises under the Public Premises Act make a
\ndifference to the tenants or occupants of such
\npremises, and if so, from which date?
\n46. It has been laid down by this Court through a
\nnumber of judgments rendered over the years, that a
\nlegislation is not be given a retrospective effect unless
\nspecifically provided for, and not beyond the period that
\nis provided therein. Thus, a Constitution Bench held in
\nGarkiapati Veeraya v. N. Subbiah Choudhry reported in
\nAIR 1957 SC 540 that in the absence of anything in the
\nenactment to show that it is to be retrospective, it
\ncannot be so constructed, as to have the effect of
\naltering the law applicable to a claim in litigation at the
\ntime when the act was passed. In that matter, the
\nCourt was concerned with the issue as to whether the
\nAppellant’s right to file an appeal continued to be
\navailable to him for filing an appeal to the Andhra
\nPradesh High Court after it was created from the
\nerstwhile Madras High Court. The Constitution Bench
\nheld that the right very much survived, and the vested
\nright of appeal can be taken away only by a subsequent
\nenactment, if it so provides expressly or by necessary
\nintendment and not otherwise.
\n49. The same has been the view taken by a bench of
\nthree Judges of this Court in J.P. Jani, Income Tax
\nOfficer, Circle IV, Ward G, Ahmedabad v. Induprasad
\nDevshanker Bhatt reported in AIR 1969 SC 778 in the
\ncontext of a provision of the Income Tax Act, 1961, in
\nthe matter of reopening of assessment orders. In that
\nmatter the Court was concerned with the issue as to
\nwhether the Income Tax Officer could re-open the
\nassessment under Section 297(2) (d)(ii) and 148 of the
\nIncome Tax Act, 1961, although the right to re-open
\nwas barred by that time under the earlier Income Tax
\nAct, 1922. This Court held that the same was
\nimpermissible and observed in paragraph 5 as follows:
\n5\u2026\u2026The reason is that such a construction
\nof Section 297(2)(d)(ii) would be
\ntantamount to giving of retrospective
\noperation to that section which is not
\nwarranted either by the express language
\nof the section or by necessary implication.
\nThe principle is based on the well-known
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\nrule of interpretation that unless the terms
\nof the statute expressly so provide or
\nunless there is a necessary implication,
\nretrospective operation should not be given
\nto the statute so as to affect, alter or
\ndestroy any right already acquired or to
\nrevive any remedy already lost by efflux of
\ntime.
\n50. In Arjan Singh v. State of Punjab reported in AIR
\n1970 SC 703, this Court was concerned with the issue
\nof date of application of Section 32KK added into the
\nPepsu Tenancy and Agricultural Lands Act, 1955. This
\nCourt held in paragraph 4 thereof as follows:
\n4. It is a well-settled rule of construction
\nthat no provision in a statute should be
\ngiven retrospective effect unless the
\nlegislature by express terms or by
\nnecessary implication has made it
\nretrospective and that where a provision is
\nmade retrospective, care should be taken
\nnot to extend its retrospective effect
\nbeyond what was intended.
\n52. In the case of K.S. Paripoornan v. State of Kerala
\nreported in AIR 1995 SC 1012, a Constitution Bench of
\nthis Court was concerned with the retrospective effect
\nof Section 23(1A) introduced in the Land Acquisition
\nAct. While dealing with this provision, this Court has
\nobserved as follows:
\n64. A statute dealing with substantive
\nrights differs from a statute which relates
\nto procedure or evidence or is declaratory
\nin nature inasmuch as while a statute
\ndealing with substantive rights is prima
\nfacie prospective unless it is expressly or
\nby necessary implication made to have
\nretrospective effect, a statute concerned
\nmainly with matters of procedure or
\nevidence or which is declaratory in nature
\nhas to be construed as retrospective unless
\nthere is a clear indication that such was not
\nthe intention of the legislature. A statute is
\nregarded retrospective if it operates on
\ncases or facts coming into existence before
\nits commencement in the sense that it
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\naffects, even if for the future only, the
\ncharacter or consequences of transactions
\npreviously entered into or of other past
\nconduct. By virtue of the presumption
\nagainst retrospective applicability of laws
\ndealing with substantive rights transactions
\nare neither invalidated by reason of their
\nfailure to comply with formal requirements
\nsubsequently imposed, nor open to attack
\nunder powers of avoidance subsequently
\nconferred. They are also not rendered valid
\nby subsequent relaxations of the law,
\nwhether relating to form or to substance.
\nSimilarly, provisions in which a contrary
\nintention does not appear neither impose
\nnew liabilities in respect of events taking
\nplace before their commencement, nor
\nrelieve persons from liabilities then
\nexisting, and the view that existing
\nobligations were not intended to be
\naffected has been taken in varying degrees
\neven of provisions expressly prohibiting
\nproceedings. (See: Halsbury’s Laws of
\nEngland, 4th Edn. Vol. 44, paras 921, 922,
\n925 and 926).
\n54. Having noted the aforesaid observations, it is very
\nclear that in the facts of the present case, the
\nAppellant’s status as a deemed tenant was accepted
\nunder the state enactment, and therefore he could not
\nbe said to be in “unauthorised occupation”. His right
\ngranted by the state enactment cannot be destroyed by
\ngiving any retrospective application to the provisions of
\nPublic Premises Act, since there is no such express
\nprovision in the statute, nor is it warranted by any
\nimplication. In fact his premises would not come within
\nthe ambit of the Public Premises Act, until they
\nbelonged to the Respondent No. 1, i.e. until 1.1.1974.
\nThe corollary is that if the Respondent No. 1 wanted to
\nevict the Appellant, the remedy was to resort to the
\nprocedure available under the Bombay Rent Act or its
\nsuccessor Maharashtra Rent Control Act, by
\napproaching the forum thereunder, and not by resorting
\nto the provisions of the Public Premises Act.\u201d
\n45. In the case of State of Punjab and Ors. vs. Bhajan Kaur
\nand Ors.: (supra) , the Apex Court of the land, held thus:
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\n\u201c9. A statute is presumed to be prospective unless held
\nto be retrospective, either expressly or by necessary
\nimplication. A substantive law is presumed to be
\nprospective. It is one of the facets of rule of law.
\n10. Section 92-A of the 1939 Act created a right and a
\nliability on the owner of the vehicle. It is a statutory
\nliability. Per se it is not a tortuous liability.
\nWhere a right is created by an enactment, in absence
\nof a clear provision in the statute, it is not to be applied
\nretrospectively.
\n13. No reason has been assigned as to why the 1988
\nAct should be held to be retrospective in character. The
\nrights and liabilities of the parties are determined when
\ncause of action for filing the claim petition arises. As
\nindicated hereinbefore, the liability under the Act is a
\nstatutory liability. The liability could, thus, be made
\nretrospective only by reason of a statute or statutory
\nrules. It was required to be so stated expressly by the
\nParliament. Applying the principles of interpretation of
\nstatute, the 1988 Act cannot be given retrospective
\neffect, more particularly, when it came into force on or
\nabout 1.07.1989.
\n17. In Garikapati v. Subbaiah Chowdhary
\n[1957]1SCR488 , the law is stated, thus:
\n25…The golden rule of construction is that,
\nin the absence of anything in the
\nenactment to show that it is to have
\nretrospective operation, it cannot be so
\nconstrued as to have the effect of altering
\nthe law applicable to a claim in litigation at
\nthe time when the Act was passed.\u2026
\n23. In Madishetti Bala Ramul (D) by LRs. v. The Land
\nAcquisition Officer: (2007)9SCC650 , this Court
\nobserved:
\n\u201c19. In Land Acquisition Officer-cum-
\nDSWO, A.P. v. B.V. Reddy and Sons this
\nCourt opined that Section 25 being not a
\nprocedural provision will have no
\nretrospective effect, holding:
\n6. Coming to the second question, it is a
\nwell- settled principle of construction that a
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\nsubstantive provision cannot be
\nretrospective in nature unless the provision
\nitself indicates the same. The amended
\nprovision of Section 25 nowhere indicates
\nthat the same would have any retrospective
\neffect. Consequently, therefore, it would
\napply to all acquisitions made subsequent to
\n24-9-1984, the date on which Act 68 of
\n1984 came into force. The Land Acquisition
\n(Amendment) Bill of 1982 was introduced in
\nParliament on 30- 4-1982 and came into
\noperation with effect from 24-9-1984….
\n27. For the reasons aforementioned, the decisions of
\nKerala and Punjab & Haryana High Court do not lay
\ndown a good law. They are overruled accordingly.
\nHowever, as the State has not asked for any relief
\nagainst the respondents, this appeal is dismissed. No
\ncosts.
\n46. In the case of Joseph Isharat vs. Rozy Nishikant
\nGaikwad:(supra), the Bombay High Court, held thus:
\n\u201c4. Under the Benami Act, as it stood on the date of the
\nsuit as well as on the date of filing of written statement
\nand passing of the decree by the courts below,
\nprovided for the definition of a “benami transaction”
\nunder clause (a) of Section 2. Under that provision, any
\ntransaction in which property is transferred to one
\nperson for consideration paid or provided by another
\ncame within the definition of “benami transaction”.
\nSection 3 of the Benami Act, in sub-section (1),
\nprovided that no person shall enter into any benami
\ntransaction. Sub-section (2) contained two exceptions
\nto the prohibition contained in sub-section (1). The first
\nexception, contained in clause (a) of sub-section (2),
\nwas in respect of purchase of property by any person in
\nthe name of his wife or unmarried daughter. In the
\ncase of such purchase, it was to be presumed, unless
\nthe contrary was proved, that the property was
\npurchased for the benefit of the wife or unmarried
\ndaughter, as the case may be. Simultaneously, Section
\n4 of the Benami Act contained a prohibition in respect
\nof right to recover property held benami. Sub-section
\n(1) provided that no suit, claim or action to enforce any
\nright in respect of any property held benami against
\nthe person in whose name the property is held, or
\nagainst any other person, shall lie by or on behalf of a
\nperson claiming to be the real owner of such property.
\nSub-section (2) made provisions likewise in respect of a
\ndefence based on a plea of benami transaction. Sub-
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\nsection (2) provided that no defence based on any right
\nin respect of any property held benami, whether
\nagainst the person in whose name the property is held
\nor against any other person, shall be allowed in any
\nsuit, claim or action by or on behalf of a person
\nclaiming to be the real owner of such property. There
\nwas a twofold exception to this restriction. First was in
\nrespect of the person in whose name the property is
\nheld being a coparcener in a Hindu undivided family
\nand the property being held for the benefit of the
\ncoparceners of the family. The second exception was in
\nrespect of the person, in whose name the property was
\nheld, being a trustee or other person standing in a
\nfiduciary capacity and the property being held for the
\nbenefit of another person for whom he was such
\ntrustee or towards whom he stood in such capacity. The
\npresent suit was filed when these provisions were in
\noperation. These provisions continued to apply even
\nwhen the written statement was filed by the Defendant
\nand the suit was heard and decreed by both the courts
\nbelow. The legal provisions continued to apply even
\nwhen the second appeal was filed before this court. It
\nis only now during the pendency of the second appeal,
\nwhen it has come up for final hearing, that there is a
\nchange in law. The Benami Act has been amended by
\nthe Parliament in 2016 with the passing of the Benami
\nTransactions (Prohibition) Amendment Act, 2016. This
\namendment has come into effect from 01 November
\n2016. In the Amended Act the definition of “benami
\ntransaction” has undergone a change. Under the
\nAmended Act “benami transaction” means (under
\nSection 2(9) of the Act) a transaction or an
\narrangement where a property is transferred to, or is
\nheld by, a person, and the consideration for such
\nproperty has been provided, or paid by, another
\nperson; and the property is held for the immediate or
\nfuture benefit, direct or indirect, of the person who has
\nprovided the consideration. There are four exceptions
\nto this rule. The first is in respect of a karta or a
\nmember of a Hindu undivided family holding the
\nproperty for the benefit of the family. The second
\nexception is in respect of a person standing in a
\nfiduciary capacity holding the property for the benefit of
\nanother person towards whom he stands in such
\ncapacity. The third exception is in the case of an
\nindividual who purchases the property in the name of
\nhis spouse or child, the consideration being provided or
\npaid out of the known sources of the individual. The
\nfourth exception is in the case of purchase of property
\nin the name of brother or sister or lineal ascendant or
\ndescendant where the names of such brother or sister
\nor lineal ascendant or descendant, as the case may be,
\nand the individual appear as joint owners in any
\ndocument. Sub-section (1) of Section 3 contains the
\nvery same prohibition as under the unamended Act, in
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\nthat it prohibits all benami transactions. Section 4
\nlikewise prohibits suits, claims or actions or defences
\nbased on the plea of benami as in the case of the
\nunamended Act. The submission is that under this
\nscheme of law, step-daughter not having been defined
\nunder the Benami Act, but having been defined under
\nthe Income Tax Act, 1961, by virtue of sub-section (31)
\nof Section 2 of the amended Benami Act, the meaning
\nof the expression will be the one assigned to it under
\nthe Income Tax Act. The definition of daughter under
\nthe Income Tax Act admits of a step-child within it. It is
\nsubmitted that under the amended definition of
\n“benami transaction”, thus, there is a clear exception in
\nrespect of a purchase made in the name of a stepdaughter
\nby an individual provided, of course, the
\nconsideration has been provided or paid out of known
\nsources of the individual.
\n7. What is crucial here is, in the first place, whether the
\nchange effected by the legislature in the Benami Act is
\na matter of procedure or is it a matter of substantial
\nrights between the parties. If it is merely a procedural
\nlaw, then, of course, procedure applicable as on the
\ndate of hearing may be relevant. If, on the other hand,
\nit is a matter of substantive rights, then prima facie it
\nwill only have a prospective application unless the
\namended law speaks in a language “which expressly or
\nby clear intention, takes in even pending matters.”.
\nShort of such intendment, the law shall be applied
\nprospectively and not retrospectively.
\n8. As held by the Supreme Court in the case of R.
\nRajagopal Reddy v. Padmini Chandrasekharan (1995) 2
\nSCC 630, Section 4 of the Benami Act, or for that
\nmatter, the Benami Act as a whole, creates substantive
\nrights in favour of benamidars and destroys substantive
\nrights of real owners who are parties to such
\ntransaction and for whom new liabilities are created
\nunder the Act. Merely because it uses the word “it is
\ndeclared”, the Act is not a piece of declaratory or
\ncurative legislation. If one has regard to the substance
\nof the law rather than to its form, it is quite clear, as
\nnoted by the Supreme Court in R. Rajagopal Reddy,
\nthat the Benami Act affects substantive rights and
\ncannot be regarded as having a retrospective
\noperation. The Supreme Court in R. Rajagopal Reddy
\nalso held that since the law nullifies the defences
\navailable to the real owners in recovering the properties
\nheld benami, the law must apply irrespective of the
\ntime of the benami transaction and that the expression
\n“shall lie” in Section 4(1) or “shall be allowed” in
\nSection 4(2) are prospective and apply to the present
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\n(future stages) as well as future suits, claims and
\nactions only. These observations clearly hold the field
\neven as regards the present amendment to the Benami
\nAct. The amendments introduced by the Legislature
\naffect substantive rights of the parties and must be
\napplied prospectively.\u201d
\n47. In the case of Jeans Knit (P) Ltd. vs. Deputy Commissioner
\nof Income Tax and Ors (supra), the Supreme Court, held thus:
\n\u201c2. We may make it clear that this Court has not made
\nany observations on the merits of the cases, i.e. the
\ncontentions which are raised by the Appellant
\nchallenging the move of the IT authorities to reopen
\nthe assessment. Each case shall be examined on its
\nown merits keeping in view the scope of judicial review
\nwhile entertaining such matters, as laid down by this
\nCourt in various judgments.
\n3. We are conscious of the fact that the High Court has
\nreferred to the judgment of this Court in CIT v. Chhabil
\nDass Agarwal (2013) 261 CTR (SC) 113 : (2013) 91
\nDTR (SC) 193 : (2013) 357 ITR 357 (SC). We find that
\nthe principle laid down in the said case does not apply
\nto these cases.
\n4. During the pendency of these appeals, stay of
\nreassessment was granted, which shall continue till the
\ndisposal of the writ petitions before the High Courts.
\nThe appeals are allowed in the aforesaid terms.
\n48. In the case of Raza Textiles Ltd. vs. Income Tax Officer,
\nRampur:(supra), the Apex Court of the land, observed thus:
\n3. There was material before him on this question. He
\nhad jurisdiction to decide the question either way. It
\ncannot be said that the officer assumed jurisdiction by
\nwrong decision on this question of residence”. The
\nAppellate Bench appears to have been under the
\nimpression that the Income-tax Officer was the sole
\njudge of the fact whether the firm in question was
\nresident or non-resident. This conclusion, in our
\nopinion, is wholly wrong. No authority, much less a
\nquasi-judicial authority, can confer jurisdiction on itself
\nby deciding a jurisdictional fact wrongly The question
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\nwhether the jurisdictional fact has been rightly decided
\nor not is a question that is open for examination by the
\nHigh Court in an application for a writ of certiorari. If
\nthe High Court comes to the conclusion, as the learned
\nsingle Judge has done in this case, that the Income-tax
\nOfficer had clutched at the jurisdiction by deciding a
\njurisdictional fact erroneously, then the assesses was
\nentitled for the writ of certiorari prayed for by him. It is
\nincomprehensible to think that a quasi-judicial
\nauthority like the Income-tax Officer can erroneously
\ndecide a jurisdictional fact and thereafter proceed to
\nimpose a levy on a citizen. In our opinion the Appellate
\nBench is wholly wrong in opining that the Income-tax
\nOfficer can “decide either way”.
\n49. In the case of Malayala Manorama Co. Ltd vs Assistant
\nCommissioner, Commercial Taxes, (supra), it has been held
\nthus:
\n\u201c4. The Assistant Commissioner, Commercial Tax, who
\nhad issued the notice, came to the conclusion that the
\nconcession has been extended to non-taxable goods
\nalso and formed an opinion that the concession is
\napplicable only to `goods’ and newspaper was not a
\n`goods’ within the meaning of Section 2 of the Act.
\nWhile referring to another judgment of this Court
\nin Collector of Central Excise v. Ballarpur Industries Ltd.
\n[(1989) 4 SCC 566 : (1990) 77 Sales Tax Cases 282],
\nthe said Assistant Commissioner concluded that
\nnewspaper was not a `goods’ and, therefore, the
\ndeclaration was not appropriate and imposed a penalty
\nof Rs. 14,66,256 for the year 2000-2001.
\n5. The assessee firm did not take recourse to the
\nstatutory remedies available under the Act but
\nquestioned the very correctness and legality of the
\nissuance of the notice as well as the order passed by
\nthe Assistant Commissioner before the High Court of
\nKerala at Ernakulam, by filing a writ petition
\nunder Article 226 of the Constitution of India.
\n6. This writ petition was contested by the Department
\nwhich filed detailed counter affidavit. It was specifically
\npleaded by the Department that for availability of
\nstatutory alternative remedy as well as for other
\nreasons and facts stated in the reply, the writ petition
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\nitself was not maintainable. The Division Bench of the
\nHigh Court while considering this primary objection
\nraised by the Department before the High Court, came
\nto the conclusion that as the facts were not in dispute
\nand questions raised were purely legal and are to be
\ntested in view of the judgment of this Court in the case
\nof Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer [(1994)
\n93 Sales Tax Cases 95 : (1994) 2 SCC 434], Whirlpool
\nCorporation v. Registrar of Trade Marks [(1998) 8
\nSCC 1] as well as the judgment in the case of State of
\nH.P. & Ors. v. Gujarat Ambuja Cements Ltd. [(2005) 6
\nSCC 499 : (2005) 142 Sales Tax Cases 1], the writ
\npetition was maintainable. However, while laying
\nemphasis that the newspaper would not fall within the
\nexpression `goods’ under sub-section 3 of Section 5 of
\nthe Act, the High Court held that the notice issued was
\nproper as Form No. 18 which gives benefit of
\nconcessional rate of tax was factually not correct. While
\ndismissing the writ petition, however, the Bench issued
\na direction to the assessing authority to examine
\nwhether the imposition of penalty at double the rate is
\njustified in the facts and circumstances of the case,
\nwithin a period of two months from the date of receipt
\nof the copy of the judgment. It is this judgment of the
\nHigh Court which has been assailed in the present
\nappeal under Article 136 of the Constitution of India.
\n9. Having heard the learned senior counsel appearing
\nfor the parties, we are of the considered view that the
\norder under challenge requires interference by this
\nCourt. There is no dispute to the fact that the material
\namendments were carried out in the provisions
\nof Section 5(3) of the Act with effect from 01.04.2002.
\nThe existing 1st proviso to Section 5(3)(i) was deleted
\nas well as the expression `or uses the same in the
\nmanufacture of any goods which are not liable to tax in
\nthis Act’ in Section 5(3)(i) was also deleted. Despite
\nthese amendments, as it appears from the record
\nbefore the Court, format of Form No. 18 has not been
\namended consequently. However, the fact of the matter
\nremains that the High Court has not dwelt upon these
\nlegal issues which are the core issues involved in the
\npresent case. In our view, the discussion on the first
\nissue would certainly have some bearing on the
\nalternative argument raised on behalf of the appellant
\nbefore us. Thus, it may not be possible for this Court to
\nsustain the finding recorded by the High Court in that
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\nregard. Of course, we are not ruling out all the
\npossibilities of the High Court arriving at the same
\nconclusion if it is of that view after examining the
\namendments as well as the submissions made on
\nbehalf of the appellant with regard to its alternative
\nsubmissions. In light of this discussion, we pass the
\nfollowing order :
\n(a) The impugned order dated 2nd August, 2006
\npassed by the High Court is hereby set aside.
\n(b) The matter is remanded to the High Court for
\nconsideration afresh in accordance with law on both the
\naforesaid submissions while leaving all the contentions
\nof the assessee and the Department open for the year
\n2000- 2001, in relation to imposition of penalty
\nunder Section 45 (A) of the Act.
\n(c) The legality and validity or otherwise of the notice
\ndated 16.01.2006 and 17.01.2006 shall be subject to
\nthe final decision of the High Court.\u201d
\n50. In the case of K.T. Plantation Pvt. Ltd. and Ors. vs. State
\nof Karnataka, (supra), the Supreme Court observed thus:
\n\u201c110. Article 300A proclaims that no person can be
\ndeprived of his property save by authority of law,
\nmeaning thereby that a person cannot be deprived of
\nhis property merely by an executive fiat, without any
\nspecific legal authority or without the support of law
\nmade by a competent legislature. The expression
\n‘Property’ in Article 300A confined not to land alone, it
\nincludes intangibles like copyrights and other
\nintellectual property and embraces every possible
\ninterest recognised by law. This Court in State of W.B.
\nand Ors. v. Vishnunarayan and Associates (P) Ltd and
\nAnr. MANU\/SC\/0199\/2002 : (2002) 4 SCC 134, while
\nexamining the provisions of the West Bengal Great
\nEastern Hotel (Acquisition of Undertaking) Act, 1980,
\nheld in the context of Article 300A that the State or
\nexecutive offices cannot interfere with the right of
\nothers unless they can point out the specific provisions
\nof law which authorises their rights. Article 300A,
\ntherefore, protects private property against executive
\naction. But the question that looms large is as to what
\nextent their rights will be protected when they are
\nsought to be illegally deprived of their properties on
\nthe strength of a legislation. Further, it was also
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\nargued that the twin requirements of ‘public purpose’
\nand ‘compensation’ in case of deprivation of property
\nare inherent and essential elements or ingredients, or
\n“inseparable concomitants” of the power of eminent
\ndomain and, therefore, of entry 42, List III, as well
\nand, hence, would apply when the validity of a statute
\nis in question. On the other hand, it was the
\ncontention of the State that since the Constitution
\nconsciously omitted Article 19(1)(f), Articles 31(1) and
\n31(2), the intention of the Parliament was to do away
\nthe doctrine of eminent domain which highlights the
\nprinciples of public purpose and compensation.
\n111. Seervai in his celebrated book ‘Constitutional Law
\nof India’ (Edn. IV), spent a whole Chapter XIV on the
\n44th Amendment, while dealing with Article 300A. In
\nparagraph 15.2 (pages 1157-1158) the author opined
\nthat confiscation of property of innocent people for the
\nbenefit of private persons is a kind of confiscation
\nunknown to our law and whatever meaning the word
\n“acquisition” may have does not cover “confiscation”
\nfor, to confiscate means “to appropriate to the public
\ntreasury (by way of penalty)”. Consequently, the law
\ntaking private property for a public purpose without
\ncompensation would fall outside Entry 42 List III and
\ncannot be supported by another Entry in List III.
\nRequirements of a public purpose and the payment of
\ncompensation according to the learned author be read
\ninto Entry 42 List III. Further the learned author has
\nalso opined that the repeal of Article 19(1)(f) and 31(2)
\ncould have repercussions on other fundamental rights
\nor other provisions which are to be regarded as part of
\nthe basic structure and also stated that notwithstanding
\nthe repeal of Article 31(2), the word “compensation” or
\nthe concept thereof is still retained in Article 30(1A)
\nand in the second proviso to Article 31A(1) meaning
\nthereby that payment of compensation is a condition of
\nlegislative power in Entry 42 List III.
\n51. In the case of Mangathai Ammal (Died) through L.Rs.
\nand Ors. vs. Rajeswari and Ors. (supra), it has been held
\nthus:
\n\u201c12. It is required to be noted that the benami
\ntransaction came to be amended in the year 2016. As
\nper Section 3 of the Benami Transaction (Prohibition)
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\nAct 1988, there was a presumption that the transaction
\nmade in the name of the wife and children is for their
\nbenefit. By Benami Amendment Act, 2016, Section 3(2)
\nof the Benami Transaction Act, 1988 the statutory
\npresumption, which was rebuttable, has been omitted.
\nIt is the case on behalf of the Respondents that
\ntherefore in view of omission of Section 3(2) of the
\nBenami Transaction Act, the plea of statutory
\ntransaction that the purchase made in the name of wife
\nor children is for their benefit would not be available in
\nthe present case. Aforesaid cannot be accepted. As
\nheld by this Court in the case of Binapani Paul (Supra)
\nthe Benami Transaction (Prohibition) Act would not be
\napplicable retrospectively. Even otherwise and as
\nobserved hereinabove, the Plaintiff has miserably failed
\nto discharge his onus to prove that the Sale Deeds
\nexecuted in favour of Defendant No. 1 were benami
\ntransactions and the same properties were purchased
\nin the name of Defendant No. 1 by Narayanasamy
\nMudaliar from the amount received by him from the
\nsale of other ancestral properties.
\n52. In the case of R. Rajagopal Reddy (Dead) by L.Rs. and
\nOrs. vs. Padmini Chandrasekharan (Dead) by L.Rs. (supra),
\nthe Supreme Court held thus:
\n\u201cA mere look at the above provisions shows that the
\nprohibition under Section 3(1) is against persons who
\nare to enter into benami transactions and it has laid
\ndown that no person shall enter into any benami
\ntransaction which obviously means from the date on
\nwhich this prohibition comes into operation i.e. with
\neffect from September 5, 1988. That takes care of
\nfuture benami transactions. We are not concerned with
\nSub-section (2) but subsection (3) of Section 3 also
\nthrows light on this aspect. As seen above, it states
\nthat whoever enters into any benami transaction shall
\nbe punishable with imprisonment for a term which may
\nextend to three years or with fine or with both.
\nTherefore, the provision creates a new offence of
\nentering into such benami transactions.
\nIt is made non-cognizable and bailable as laid down
\nunder Sub-section (4). It is obvious that
\nwhen a statutory provision creates new liability and
\nnew offence, it would naturally have prospective
\noperation and would cover only those offences which
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\ntake place after Section 3(1) comes into operation.
\nIn fact Saikia J. speaking for the Court in Mithilesh
\nKumari’s case (supra) has in terms observed at page
\n635 of the report that Section 3 obviously cannot have
\nretrospective operation. We respectfully concur with
\nthis part of the learned Judge’s view. The real problem
\ncenters round the effect of Section 4(1) on pending
\nproceedings wherein claim to any property on account
\nof it being held benami by other side is on the anvil and
\nsuch proceeding had not been finally disposed of by the
\ntime Section 4(1) came into operation, namely, on 19th
\nMay, 1988. Saikia J. speaking for the Division Bench in
\nthe case of Mithilesh Kumari (supra) gave the following
\nreasons for taking the view that though Section 3 is
\nprospective and though Section 4(1) is also not
\nexpressly made retrospective, by the legislature, by
\nnecessary implication, it appears to be retrospective
\nand would apply to all pending proceedings wherein
\nright to property allegedly held benami is in dispute
\nbetween parties and that Section 4(1) will apply at
\nwhatever stage the litigation might be pending in the
\nhierarchy of the proceedings :-
\n(1)\u2026\u2026\u2026\u2026\u2026\u2026\u2026.
\n(2)\u2026\u2026\u2026\u2026\u2026\u2026\u2026.
\n(3) When an Act is declaratory in nature, the
\npresumption against retrospectivity is not applicable. A
\nstatute declaring the benami transactions to be
\nunenforceable belongs to this type. The presumption
\nagainst taking away vested right will not apply in this
\ncase in as much as under law it is the benamidar in
\nwhose name the property stands, and law only enabled
\nthe real owner to recover the property from him which
\nright has now been ceased by the Act. In one sense
\nthere was a right to recover or resist in the real owner
\nagainst the benamidar. Ubi Jus ibi remedium. Where
\nthe remedy is barred, the right is rendered
\nunenforceable.
\n(4) When the law nullifies the defences available to the
\nreal owners in recovering the benami property from the
\nbenamidar, the law must apply irrespective of the time
\nof the benami transactions. The expression “shall lie”
\nunder Section 4(1) and “shall be allowed” in Section
\n4(2) are prospective and shall apply to present (future
\nstages) and future suits, claims or action only.
\n(5)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..
\n(6) \u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n11. Before we deal with these six considerations which
\nweighed with the Division Bench for taking the view
\nthat Section 4 will apply retrospectively in the sense
\nthat it will get telescoped into all pending proceedings,
\nhowsoever earlier they might have been filed, if they
\nwere pending at different stages in the hierarchy of the
\nproceedings even upto this Court, when Section 4 came
\ninto operation, it would be apposite to recapitulate the
\nsalient feature of the Act. As seen earlier, the preamble
\nof the Act itself states that it is an act to prohibit
\nbenami transactions and the right to recover property
\nheld benami, for matters connected therewith or
\nincidental thereto. Thus it was enacted to efface the
\nthen existing rights of the real owners of properties
\nheld by others benami. Such an act was not given any
\nretrospective effect by the legislature. Even when we
\ncome to Section 4, it is easy to visualise that Subsection
\n(1). of Section 4 states that no suit, claim or
\naction to enforce any right in respect of any property
\nheld benami against the person in whose name the
\nproperty is held or against any other shall lie by or on
\nbehalf of a person claiming to be the real owner of such
\nproperty. As per Section 4(1) no such suit shall
\nthenceforth lie to recover the possession of the
\nproperty held benami by the defendant. Plaintiffs right
\nto that effect is sought to be taken away and any suit
\nto enforce such a right after coming into operation of
\nSection 4(1) that is 19th May, 1988, shall not lie. The
\nlegislature in its wisdom has nowhere provided in
\nSection 4(1) that no such suit, claim or action pending
\non the date when Section 4 came into force shall not be
\nproceeded with and shall stand abated. On the
\ncontrary, clear legislative intention is seen from the
\nwords “no such claim, suit or action shall lie”, meaning
\nthereby no such suit, claim or action shall be permitted
\nto be filed or entertained or admitted to the portals of
\nany Court for seeking such a relief after coming into
\nforce of Section 4(1). In Collins English Dictionary,
\n1979 Edition as reprinted subsequently, the word ‘lie’
\nhas been defined in connection with suits and
\nproceedings. At page 848 of the Dictionary while
\ndealing with topic No. 9 under the definition of term ‘lie’
\nit is stated as under :-
\n\u201cFor an action, claim appeal ect. to subsist; be
\nmaintainable or admissible.\u201d
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\nThe word ‘lie’ in connection with the suit, claim or
\naction is not defined by the Act. If we go by the
\naforesaid dictionary meaning it would mean that such
\nsuit, claim or action to get any property declared
\nbenami will not be admitted on behalf of such plaintiff
\nor applicant against the concerned defendant in whose
\nname the property is held on and from the date on
\nwhich this prohibition against entertaining of such suits
\ncomes into force. With respect, the view taken by that
\nSection 4(1) would apply even to such pending suits
\nwhich were already filed and entertained prior to the
\ndate when the Section came into force and which has
\nthe effect of destroying the then existing right of
\nplaintiff in connection with the suit property cannot be
\nsustained in the face of the clear language of Section
\n4(1). It has to be visualised that the legislature in its
\nwisdom has not expressly made Section 4
\nretrospective. Then to imply by necessary implication
\nthat Section 4 would have retrospective effect and
\nwould cover pending litigations filed prior to coming
\ninto force of the Section would amount to taking a view
\nwhich would run counter to the legislative scheme and
\nintent projected by various provisions of the Act to
\nwhich we have referred earlier. It is, however, true as
\nheld by the Division Bench that on the express
\nlanguage of Section 4(1) any right inhering in the real
\nowner in respect of any property held benami would
\nget effaced once Section 4(1) operated, even if such
\ntransaction had been entered into prior to the coming
\ninto operation of Section 4(1), and hence-after Section
\n4(1) applied no suit can lie in respect to such a past
\nbenami transaction. To that extent the Section may be
\nretroactive. To highlight this aspect we may take an
\nillustration. If a benami transaction has taken place in
\n1980 and suit is filed in June 1988 by the plaintiff
\nclaiming that he is the real owner of the property and
\ndefendant is merely a benamidar and the consideration
\nhas flown from him then such a suit would not lie on
\naccount of the provisions of Section 4(1). Bar against
\nfiling, entertaining and admission of such suits would
\nhave become operative by June, 1988 and to that
\nextent Section 4(1) would take in its sweep even past
\nbenami transactions which are sought to be litigated
\nupon after coming into force of the prohibitory
\nprovision of Section 4(1); but that is the only effect of
\nthe retroactivity of Section 4(1) and nothing more than
\nthat. From the conclusion that Section 4(1) shall apply
\neven to past benami transactions to the aforesaid
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\nextent, the next step taken by the Division Bench that
\ntherefore, the then existing rights got destroyed and
\neven though suits by real owners were filed prior to
\ncoming into operation of Section 4(1) they would not
\nsurvive, does not logically follow.
\n\u201c17. As regards, reason No. 3, we are of the
\nconsidered view that the Act cannot be treated to
\nbe declaratory in nature.
\nDeclaratory enactment declares and clarifies the
\nreal intention of the legislature in connection
\nwith an earlier existing transaction or enactment,
\nit does not create new rights or obligations.
\nOn the express language of Section 3, the Act
\ncannot be said to be declaratory but in substance
\nit is prohibitory in nature and seeks to destroy
\nthe rights of the real owner qua properties held
\nbenami and in this connection it has taken away
\nthe right of the real owner both for filing a suit or
\nfor taking such a defence in a suit by benamidar.
\nSuch an Act which prohibits benami transactions
\nand destroys rights flowing from such
\ntransactions as existing earlier is really not a
\ndeclaratory enactment. With respect, we disagree
\nwith the line of reasoning which commanded to
\nthe Division Bench. In this connection, we may
\nrefer to the following observations in ‘Principles
\nof Statutory Interpretation’, 5th Edition 1992, by
\nShri G.P. Singh, at page 315 under the caption
\n‘Declaratory statutes’ :-
\nThe presumption against retrospective operation
\nis not applicable to declaratory statutes. As states
\nin CRAIES and approved by the Supreme Court :
\n“For modern purposes a declaratory Act may be
\ndefined as an Act to remove doubts existing as to
\nthe common law, or the meaning or effect of any
\nstatute. Such Acts are usually held to be
\nretrospective. The usual reason for passing a
\ndeclaratory Act is to set aside what Parliament
\ndeems to have been a judicial error whether in
\nthe statement of the common law or in the
\ninterpretation of statutes. Usually, if not
\ninvariably, such an Act contains a preamble, and
\nalso the word ‘declared’ as well as the word
\nenacted”. But the use of the words ‘it is declared’
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\nis not conclusive that the Act is declaratory for
\nthese words may, at times be used to introduce
\nnew rules of law and the Act in the latter case will
\nonly be amending the law and will not necessarily
\nbe retrospective. In determining, therefore, the
\nnature of the Act, regard must be had to the
\nsubstance rather than to the form. If a new Act is
\nto explain an earlier Act, it would be without
\nobject unless construed retrospective. An
\nexplanatory Act is generally passed to supply an
\nobvious omission or to clear up doubts as to the
\nmeaning of the previous Act. It is well settled
\nthat if a statute is curative or merely declaratory
\nof the previous law retrospective operation is
\ngenerally intended. The language ‘shall be
\ndeemed always to have meant’ is declaratory,
\nand is in plain terms retrospective. In the
\nabsence of clear words indicating that the
\namending Act is declaratory, it would not be so
\nconstrued when the pre-amended provision was
\nclear and unambiguous. An amending Act may be
\npurely clarificatory to clear a meaning of a
\nprovision of the principal Act which was already
\nimplicit. A clarificatory amendment of this nature
\nwill have retrospective effect and, therefore, if
\nthe principal Act was existing law when the
\nconstitution came into force the amending Act
\nalso will be part of the existing law.
\nIn Mithilesh Kumari v. Prem Bihari Khare, Section
\n4 of the Benami Transactions (Prohibition) Act,
\n1988 was, it is submitted, wrongly held to be an
\nAct declaratory in nature for it was not passed to
\nclear any doubt existing as to the common law or
\nthe meaning or effect of any statute. The
\nconclusion however, that Section 4 applied also
\nto past benami transactions may be supportable
\non the language used in the section.
\n18. No exception can be taken to the aforesaid
\nobservations of learned author which in our view
\ncan certainly be pressed in service for judging
\nwhether the impugned section is declaratory in
\nnature or not. Accordingly it must be held that
\nSection 4 or for that matter the Act as a whole is
\nnot a piece of declaratory or curative legislation.
\nIt creates substantive rights in favour of
\nbenamidars and destroys substantive rights of
\nreal owners
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\nwho are parties to such transactions and for
\nwhom new liabilities are created by the Act.\u201d
\n53. In the case of Garikapatti Veeraya Vs. N. Subbiah
\nChoudhury, AIR 1957 SC 540, the Supreme Court observed thus:
\n25. In construing the articles of the Constitution we
\nmust bear in mind certain cardinal rules of
\nconstruction. It has been said in Hough v. Windus
\n[1884] 12 Q.B.D. 224, that “statutes should be
\ninterpreted, if possible, so as to respect vested right.”
\nThe golden rule of construction is that, in the absence
\nof anything in the enactment to show that it is to have
\nretrospective operation, it cannot be so construed as to
\nhave the effect of altering the law applicable to a claim
\nin litigation at the time when the Act was passed
\n[Leeds and County Bank Ltd. v. Walker (1883) 11
\nQ.B.D. 84; Moon v. Durden (1848) 2 Ex. 22; 76 R.R.
\n479. The following observation of Rankin C.J. in Sadar
\nAli v. Dalimuddin (supra) at page 520 is also apposite
\nand helpful : “Unless the contrary can be shown the
\nprovision which takes away the jurisdiction is itself
\nsubject to the implied saving of the litigant’s right.” In
\nJanardan Reddy v. The State [1950]1SCR940 Kania C.J.
\nin delivering the judgment of the Court observed that
\nour Constitution is generally speaking prospective in its
\noperation and is not to have retroactive operation in
\nthe absence of any express provision to that effect. The
\nsame principle was reiterated in Keshavan Madhava
\nMenon v. The State of Bombay 1951CriLJ680 and
\nfinally in Dajisaheb Mane and Others v. Shankar Rao
\nVithal Rao [1955]2SCR872 to which reference will be
\nmade in greater detail hereafter.
\n54. In the case of Keshavan Madhava Menon vs. The State
\nof Bombay, (supra), the Supreme Court held thus:
\n7. It will be noticed that all that this clause declares is
\nthat all existing laws, in so far as they are inconsistent
\nwith the provisions of Part III shall, to the extent of
\nsuch inconsistency, be void. Every statute is prima facie
\nprospective unless it is expressly or by necessary
\nimplications made to have retrospective operation.
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\nThere is no reason why this rule of interpretation
\nshould not be applied for the purpose of interpreting
\nour Constitution. We find nothing in the language of
\narticle 13(1) which may be read as indicating an
\nintention to give it retrospective operation. On the
\ncontrary, the language clearly points the other way. The
\nprovisions of Part III guarantee what are called
\nfundamental rights. Indeed, the heading of Part III is
\n“Fundamental Rights”. These rights are given, for the
\nfirst time, by and under our Constitution. Before the
\nConstitution came into force there was no such thing as
\nfundamental right.
\nWhat article 13(1) provides is that all existing laws
\nwhich clash with the exercise of the fundamental rights
\n(which are for the first time created by the
\nConstitution) shall to that extent be void.
\nAs the fundamental rights became operative only on
\nand from the date of the Constitution the question of
\nthe inconsistency of the existing laws with those rights
\nmust necessarily arise on and from the date those
\nrights came into being. It must follow, therefore, that
\narticle 13(1) can have no retrospective effect but is
\nwholly prospective in its operation. After this first point
\nis noted, it should further be seen that article 13(1)
\ndoes not in terms make the existing laws which are
\ninconsistent with the fundamental rights void ab initio
\nor for all purposes. On the contrary, it provides that all
\nexisting laws, in so far as they are inconsistent with the
\nfundamental rights, shall be void to the extent of their
\ninconsistency.
\nThey are not void for all purposes but they are void
\nonly to the extent they come into conflict with the
\nfundamental rights. In other words, on and after the
\ncommencement of the Constitution no existing law will
\nbe permitted to stand in the way of the exercise of any
\nof the fundamental rights. Therefore, the voidness of
\nthe existing law is limited to the future exercise of the
\nfundamental rights.
\nArticle 13(1) cannot be read as obliterating the entire
\noperation of the inconsistent laws, or to wipe them out
\naltogether from the statute book, for to do so will be to
\ngive them retrospective effect which, we have said,
\nthey do not possess.
\nSuch laws exist for all past transactions and for
\nenforcing all rights and liabilities accrued before the
\ndate of the Constitution.
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\nLearned counsel for the appellant has drawn our
\nattention to articles 249(3), 250, 357, 358 and 369
\nwhere express provision has been made for saving
\nthings done under the laws which expired. It will be
\nnoticed that each of those articles was concerned with
\nexpiry of temporary statutes. It is well known that on
\nthe expiry of a temporary statute no further
\nproceedings can be taken under it, unless the statute
\nitself saved pending proceedings. If, therefore, an
\noffence had been committed under a temporary statute
\nand the proceedings were initiated but the offender had
\nnot been prosecuted and punished before the expiry of
\nthe statute, then, in the absence of any saving clause,
\nthe pending prosecution could not be proceeded with
\nafter the expiry of the statute by efflux of time. It was
\non this principle that express provision was made in the
\nseveral articles noted above for saving things done or
\nomitted to be done under the expiring laws referred to
\ntherein. As explained above, article 13(1) is entirely
\nprospective in its operation and as it was not intended
\nto have any retrospective effect there was no necessity
\nat all for inserting in that article any such saving
\nclause. The effect of article 13(1) is quite different from
\nthe effect of the expiry of a temporary statute or the
\nrepeal of a statute by a subsequent statute.
\nAs already explained, article 13(1) only has the effect
\nof nullifying or rendering all inconsistent existing laws
\nineffectual or nugatory and devoid of any legal force or
\nbinding effect only with respect to the exercise of
\nfundamental rights on and after the date of the
\ncommencement of the Constitution. It has no
\nretrospective effect and if, therefore, an act was done
\nbefore the commencement of the Constitution in
\ncontravention of the provisions of any law which, after
\nthe Constitution, becomes void with respect to the
\nexercise of any of the fundamental rights, the
\ninconsistent law is not wiped out so far as the past act
\nis concerned for, to say that it is, will be to give the law
\nretrospective effect.
\nThere is no fundamental right that a person shall not
\nbe prosecuted and punished for an offence committed
\nbefore the Constitution came into force.
\nSo far as the past acts are concerned the law exists,
\nnotwithstanding that it does not exist with respect to
\nthe future exercise of fundamental rights.
\nWe, therefore, agree with the conclusion arrived at by
\nthe High Court on the second question, although on
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\ndifferent grounds. In view of that conclusion, we do not
\nconsider it necessary to examine the reasons of the
\nHigh Court for its conclusion. In our opinion, therefore,
\nthis appeal fails, and is dismissed.
\n19. A reference to the Constitution will show that the
\nframers thereof have used the word “repeal” wherever
\nnecessary (see articles 252, 254, 357, 372 and 395).
\nThey have also used such words as “invalid” (see
\narticles 245, 255 and 276), “cease to have effect” (see
\narticles 358 and 372), “shall be inoperative”, etc. They
\nhave used the word “void” only in two articles, these
\nbeing article 13(1) and article 154, and both these
\narticles deal with cases where a certain law is
\nrepugnant to another law to which greater sanctity is
\nattached. It further appears that where they wanted to
\nsave things done or omitted to be done under the
\nexisting law, they have used apt language for the
\npurpose; see for example articles 249, 250, 357, 358
\nand 369. The thoroughness and precision which the
\nframers of the Constitution have observed in the
\nmatters to which reference has been made, disinclines
\nme to read into article 13(1) a saving provision of the
\nkind which we are asked to read into it.
\nNor can I be persuaded to hold that treating an Act as
\nvoid under article 13(1) should have a milder effect
\nupon transactions not past and closed than the repeal
\nof an Act or its expiry in due course of time. In my
\nopinion, the strong sense in which the word “void” is
\nnormally used and the context in which it has been
\nused are not to be completely ignored. Evidently, the
\nframers of the Constitution did not approve of the laws
\nwhich are in conflict with the fundamental rights, and,
\nin my judgment, it would not be giving full effect to
\ntheir intention to hold that even after the Constitution
\nhas come into force, the laws which are inconsistent
\nwith the fundamental rights will continue to be treated
\nas good and effectual laws in regard to certain matters,
\nas if the Constitution had never been passed. How such
\na meaning can be read into the words used in article
\n13(1), it is difficult for me to understand. There can be
\nno doubt that article 13(1) will have no retrospective
\noperation, and transactions which are past and closed,
\nand rights which have already vested, will remain
\nuntouched. But with regard to inchoate matters which
\nwere still not determined when the Constitution came
\ninto force, and as regards proceedings whether not yet
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\nbegun, or pending at the time of enforcement of the
\nConstitution and not yet prosecuted to a final
\njudgment, the very serious question arises as to
\nwhether a law which has been declared by the
\nConstitution to be completely ineffectual can yet be
\napplied. On principle and on good authority, the answer
\nto this question would appear to me to be that the law
\nhaving ceased to be effectual can no longer be applied.
\nIn R. v. Mawgan (Inhabitants) (1888) 8 A. & E. 496 a
\npresentment as to the non-repair of a highway had
\nbeen made under 13 Geo. 3, c. 78, s. 24, but before
\nthe case came on to be tried, the Act was repealed. In
\nthat case, Lord Denman C.J. said :
\n“If the question had related merely to the presentment,
\nthat no doubt is complete. But dum loquimur, we have
\nlost the power of giving effect to anything that takes
\nplace under that proceeding.”And Littledale J. added :
\n“I do not say that what is already done has become
\nbad, but that no more can be done.” In my opinion,
\nthis is precisely the way in which we should deal with
\nthe present case.
\n55. In the case of Thakur Bhim Singh (Dead) by Lrs and
\nOrs. vs. Thakur Kan Singh (1980) 3 SCC 72, the Supreme Court
\nheld thus:
\n14. Under the English law, when real or personal
\nproperty is purchased in the name of a stranger, a
\nresulting trust will be presumed in favour of the person
\nwho is proved to have paid the purchase money in the
\ncharacter of the purchaser. It is, however, open to the
\ntransferee to rebut that presumption by showing that
\nthe intention of the person who contributed the
\npurchase money was that the transferee should himself
\nacquire the beneficial interest in the property. There is,
\nhowever, an exception to the above rule of presumption
\nmade by the English law when the person who gets the
\nlegal title under the conveyance is either a child or the
\nwife of the person who contributes the purchase money
\nor his grand child, whose father is dead. The rule
\napplicable in such cases is known as the doctrine of
\nadvancement which requires the court to presume that
\nthe purchase is for the benefit of the person in whose
\nfavour the legal title is transferred even though the
\npurchase money may have been contributed by the
\nfather or the husband or the grandfather, as the case
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\nmay be, unless such presumption is rebutted by
\nevidence showing that it was the intention of the
\nperson who paid the purchase money that the
\ntransferee should not become the real owner of the
\nproperty in question. The doctrine of advancement is
\nnot in vogue in India. The counterpart of the English
\nlaw of resulting trust referred to above is the Indian law
\nof benami transactions. Two kinds of benami
\ntransactions are generally recognized in India. Where a
\nperson buys a property with his own money but in the
\nname of another person without any intention to
\nbenefit such other person, the transaction is called
\nbenami. In that case, the transferee holds the property
\nfor the benefit of the person who has contributed the
\npurchase money, and he is the real owner. The second
\ncase which is loosely termed as a benami transaction is
\na case where a person who is the owner of the property
\nexecutes a conveyance in favour of another without the
\nintention of transferring the title to the property
\nthereunder. In this case, the transferor continues to be
\nthe real owner. The difference between the two kinds of
\nbenami transactions referred to above lies in the fact
\nthat whereas in the former case, there is an operative
\ntransfer from the transferor to the transferee though
\nthe transferee holds the property for the benefit of the
\nperson who has contributed the purchase money, in the
\nlatter case, there is no operative transfer at all and the
\ntitle rests with the transferor notwithstanding the
\nexecution of the conveyance. One common feature,
\nhowever, in both these cases is that the real title is
\ndivorced from the ostensible title and they are vested
\nin different persons. The question whether a
\ntransaction is a benami transaction or not mainly
\ndepends upon the intention of the person who has
\ncontributed the purchase money in the former case and
\nupon the intention of the person who has executed the
\nconveyance in the latter case. The principle underlying
\nthe former case is also statutorily recognized in Section
\n82 of the Indian Trusts Act, 1882 which provides that
\nwhere property is transferred to one person for a
\nconsideration paid or provided by another person and it
\nappears that such other person did not intend to pay or
\nprovide such consideration for the benefit of the
\ntransferee, the transferee must hold the property for
\nthe benefit of the person paying or providing the
\nconsideration. This view is in accord with the following
\nobservations made by this Court in Meenakshi Mills.
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\nMadurai v. The Commissioner of Income-Tax, Madras
\n[1956]1SCR691 .:
\nIn this connection, it is necessary to note
\nthat the word ‘benami’ is used to denote
\ntwo classes of transactions which differ
\nfrom each other in their legal character and
\nincidents. In one sense, it signifies a
\ntransaction which is real, as for example
\nwhen A sells properties to B but the sale
\ndeed mentions X as the purchaser. Here
\nthe sale itself is genuine, but the real
\npurchaser is B, X being his benamidar. This
\nis the class of transactions which is usually
\ntermed as benami. But the word ‘benami’
\nis also occasionally used, perhaps not quite
\naccurately, to refer to a sham transaction,
\nas for example, when A purports to sell his
\nproperty to B without intending that his
\ntitle should cease or pass to B. The
\nfundamental difference between these two
\nclasses of transactions is that whereas in
\nthe former there is an operative transfer
\nresulting in the vesting of title in the
\ntransferee, in the latter there is none such,
\nthe transferor continuing to retain the title
\nnotwithstanding the execution of the
\ntransfer deed. It is only in the former class
\nof cases that it would be necessary, when a
\ndispute arises as to whether the person
\nnamed in the deed is the real transferee or
\nB, to enquire into the question as to who
\npaid the consideration for the transfer, X or
\nB. But in the latter class of cases, when the
\nquestion is whether the transfer is genuine
\nor sham, the point for decision would be,
\nnot who paid the consideration but whether
\nany consideration was paid.
\nThe Buckingham and Carnatic Co.Ltd. vs. Venkatiah and Ors.
\n(supra)
\n10. Section 73 of the Act reads as under :
\n\u2018Employer not to dismiss or punish employee during
\nperiod of sickness, etc. –
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\n(1) No employer shall dismiss, discharge, or reduce or
\notherwise punish an employee during the period the
\nemployee is in receipt of sickness benefit or maternity
\nbenefit, nor shall he, except as provided under the
\nregulations, dismiss, discharge or reduce or otherwise
\npunish an employee during the period he is in receipt of
\ndisablement benefit for temporary disablement or is
\nunder medical treatment for sickness or is absent from
\nwork as a result of illness duly certified in accordance
\nwith the regulations to arise out of the pregnancy or
\nconfinement rendering the employee unfit for work.
\n(2) No notice of dismissal or discharge or reduction
\ngiven to an employee during the period specified in
\nsub-section (1) shall be valid or operative.”
\nMr. Dolia contends that since this Act has been passed
\nfor conferring certain benefits on employees in case of
\nsickness, maternity and employment injury, it is
\nnecessary that the operative provisions of the Act
\nshould receive a liberal and beneficent construction
\nfrom the court.
\nIt is a piece of social legislation intended to confer
\nspecified benefits on workmen to whom it applies, and
\nso, it would be inappropriate to attempt to construe the
\nrelevant provisions in a technical or a narrow sense.
\nThis position cannot be disputed. But in dealing with
\nthe plea raised by Mr. Dolia that the section should be
\nliberally construed, we cannot overlook the fact that
\nthe liberal construction must ultimately flow from the
\nwords used in the section. If the words used in the
\nsection are capable of two constructions one of which is
\nshown patently to assist the achievement of the object
\nof the Act, courts would be justified in preferring that
\nconstruction to the other which may not be able to
\nfurther the object of the Act.
\nBut, on the other hand, if the words used in the section
\nare reasonably capable of only one construction and
\nare clearly intractable in regard to the construction for
\nwhich Mr. Dolia contends, the doctrine of liberal
\nconstruction can be of no assistance.
\n56. In the case of Sree Bank Ltd. vs. Sarkar Dutt Roy and Co.
\n(Supra), the Supreme Court observed thus:
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\n5. Two reasons have operated on my mind to lead me
\nto the conclusion that the general rule should not be
\napplied in the present case. First, it is recognised that
\nthe general rule is not invariable and that it is a sound
\nprinciple in considering whether the intention was that
\nthe general rule should not be applied, to “look to the
\ngeneral scope and purview of the statute, and at the
\nremedy sought to be applied, and consider what was
\nthe former state of the law and what it was that the
\nLegislature contemplated.” : see Pardo v. Bingham
\n(1869) L.R. 4 Ch. A. 735. Again in Craies on Statute
\nLaw, 6th ed., it is stated at p. 395, “If a statute is
\npassed for the purpose of protecting the public against
\nsome evil or abuse, it may be allowed to operate
\nretrospectively, although by such operation it will
\ndeprive some person or persons of a vested right.” To
\nthe same effect is the observation in Halsbury’s Laws of
\nEngland, 3rd ed., vol. 36 p. 425. This seems to me to
\nbe plain commonsense. In ascertaining the intention of
\nthe legislature it is certainly relevant to enquire what
\nthe Act aimed to achieve. In Pardo v. Bingham
\nL.R(1869)Ch. A. 735 a statute which took away the
\nbenefit of a longer period of limitation for a suit
\nprovided by an earlier Act was held to have
\nretrospective operation as otherwise it would not have
\nany operation for fifty years or more in the case of
\npersons who were at the time of its passing residing
\nbeyond the seas. It was thought that such an
\nextraordinary result could not have been intended. In
\nR. v. Vine (1875) 10 Q.B. 195 the words “Every person
\nconvicted of felony shall for ever be disqualified from
\nselling spirits by retail…. and if any person shall, after
\nhaving been so convicted, take out or have any licence
\nto sell spirits by retail, the same shall be void to all
\nintents and purposes” were applied to a person who
\nhad been convicted of felony before the Act was passed
\nthough by doing so vested rights were affected. Mellor
\nJ. observed, (pp. 200-201). “It appears to me to be the
\ngeneral object of this statute that there should be
\nrestrains as to the persons who should be qualified to
\nhold licences, not as a punishment, but for the public
\ngood, upon the ground of character… A man convicted
\nbefore the Act passed is quite as much tainted as a
\nman convicted after; and it appears to me not only the
\npossible but the natural interpretation of the section
\nthat any one convicted of felony shall be ipso facto
\ndisqualified, and the licenses, if granted, void.”
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\n8. If that is not the intention, then it is clear to me that
\nsub-s. (3) need not have been enacted at all for clearly
\nthe first sub-section would by its own terms have
\napplied to cases of winding up on a petition presented
\nbefore the amending Act. It applies to all banking
\ncompanies being wound up and, therefore, also to such
\ncompanies as are being wound up on a petition
\npresented before that Act. It could be said that even
\nthen the first sub-section would not have a
\nretrospective operation but would only apply
\nprospectively to a banking company being wound up on
\na petition presented before the Act. This may be
\nillustrated by two cases. In R. v. St. Mary, Whitechapel
\n(Inhabitants) (1848) 12 Q.B. 120 Lord Denman C.J.
\nsaid that a statute “is not properly called a
\nretrospective statute because a part of the requisites
\nfor its action is drawn from time antecedent to its
\npassing.” Again in Master Ladies Tailors Organisation v.
\nMinister of Labour and National Service (1950) 2 All.
\nF.R. 525 it was observed, “The fact that a prospective
\nbenefit is in certain cases to be measured by or
\ndepends on antecedent facts does not necessarily…
\nmake the provision retrospective.”
\n57. In the case of Rai Bahadur Seth Shreeram Durgaprasad
\nvs. Director of Enforcement (supra), the Supreme Court
\nobserved thus:
\n\u201c8. The contention of the learned Counsel that recourse
\ncould not be had to the amended Section 23(1) read
\nwith Section 23C of the Act in respect of the
\ncontravention of Section 12(2) for failure on the part of
\nthe appellants to repatriate foreign exchange on
\nshipments of manganese ore made prior to September
\n20, 1957, and there could be no initiation of
\nadjudication proceedings under the amended Section
\n23(1) read with Section 23C or levy of penalty on the
\nappellants must also fail for another reason. In
\nSukumar Pyne’s case the Court reversed the decision of
\nthe Calcutta High Court in Sukumar Pyne v. Union of
\nIndia and Ors., AIR 1962 Cal 590 striking down
\nSection 23(1)(a) as being violative of Article 14 of the
\nConstitution. Regarding the point, namely, whether
\nSection 23(1)(a) having been substituted by
\nAmendment Act XXXIX of 1957 would have
\nretrospective operation in respect of the alleged offence
\nwhich took place in 1954, the High Court came to the
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\nconclusion that the petitioner had a vested right to be
\ntried by an ordinary court of the land with such rights
\nof appeal as were open to all and although Section
\n23(1)(a) was procedural, where a vested right was
\naffected, prima facie, it was not a question of
\nprocedure. Therefore, the High Court came to the
\nconclusion that the provision as to adjudication by the
\nDirector of Enforcement could not have any
\nretrospective operation. It was held that ‘the
\nimpairment of a right by putting a new restriction
\nthereupon is not a matter of procedure only’. It impairs
\na substantive right and an enactment that does so is
\nnot retrospective unless it says so expressly or by
\nnecessary intendment. The Court reversed the High
\nCourt decision and held that effect of these provisions
\nwas that after the amendment of 1957, adjudication or
\ncriminal proceedings could be taken up in respect of a
\ncontravention mentioned in section 23(1) while before
\nthe amendment only criminal proceedings before a
\nCourt could be instituted to punish the offender. In
\nrepelling the contention advanced by Shri N.C.
\nChatterjee that the new amendments did not apply to
\ncontravention which took place before the Act came
\ninto force, the Court observed:
\nIn our opinion, there is force in the
\ncontention of the learned Solicitor-General.
\nAs observed by this Court in Rao Shiv
\nBahadur Singh vs. The State of Vindhya
\nPradesh (1953) SCR 1188, a person
\naccused of the commission of an offence
\nhas no vested right to be tried by a
\nparticular court or a particular procedure
\nexcept in so far as there is any
\nconstitutional objection by way of
\ndiscrimination or the violation of any other
\nfundamental right is involved. It is well
\nrecognised that “no person has a vested
\nright in any course of procedure” (vide
\nMaxwell 11th Edition, p. 216), and we see
\nno reason why this ordinary rule should not
\nprevail in the present case. There is no
\nprinciple underlying Art. 20 of the
\nConstitution which makes a right to any
\ncourse of procedure a vested right.
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\n58. In the case of Nar Bahadur Bhandari and Ors. vs. State
\nof Sikkim and Ors. (supra) , the Supreme Court held thus:
\n\u201c10.\u2026\u2026\u2026\u2026\u2026..The said Sub-section while on the one
\nhand ensures that the application of Section 6 of the
\nGeneral Clauses Act is not prejudiced, on the other it
\nexpresses a different intention as contemplated by the
\nsaid Section 6. The last part of the above Sub-section
\nintroduces a legal fiction whereby anything done or
\naction taken under or in pursuance of the Act of 1947
\nshall be deemed to have been done or taken under or
\nin pursuance of corresponding provisions of the Act of
\n1988. That is, the fiction is to the effect that the Act of
\n1988 had come into force when such thing was done or
\naction was taken.
\n11. This aspect of the matter was clearly elucidated by
\nthe Constitution Bench in B. N. Kohli’s case (supra). In
\nthat case Ordinance 27\/49 repealed Ordinance 12\/49.
\nThe relevant provision in the repealing Ordinance was
\nsub-sec.(3) of Section 58. That read as follows:
\n“The repeal by this Act of the
\nAdministration of Evacuee Property
\nOrdinance, 1949 or the Hyderabad
\nAdministration of Evacuee Property
\nRegulation or of any corresponding law
\nshall not affect the previous operation of
\nthat Ordinance, Regulation or
\ncorresponding law, and subject thereto,
\nanything done or any action taken in the
\nexercise of any power conferred by or
\nunder that Ordinance, Regulation or
\ncorresponding law, shall be deemed to
\nhave been done or taken in the exercise of
\nthe powers conferred by or under this Act
\nas if this Act were in force on the day on
\nwhich such thing was done or action was
\ntaken.”
\n12. While construing the said Sub-section, the Court
\nobserved as follows:
\n“…By the first part of Section 58(3) repeal of the
\nstatutes mentioned therein did not operate to vacate
\nthings done or action taken under those statutes. This
\nprovision appears to have been enacted with a view to
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\navoid the possible application of the rule of
\ninterpretation that where statute expires or is repealed,
\nin the absence of a provision to the contrary, it is
\nregarded as having never existed except as to matters
\nand transactions past and closed: (see Surtees v.
\nEllison, 1829) 9 B & C 752. This rule was altered by an
\nomnibus provision in General Clauses Act, 1897,
\nrelating to the effect of repeal of statutes by any
\nCentral Act or Regulation. By Section 6 of the General
\nClauses Act, it is provided, in so far as it is material,
\nthat any Central Act or Regulation made after the
\ncommencement of the General Clauses Act or repeals
\nany enactment, the repeal shall not affect the previous
\noperation of any enactment so repealed or anything
\nduly done or suffered thereunder, or affect any right,
\nprivilege, obligation or liability acquired, occurred or
\nincurred under any enactment so repealed or affect any
\ninvestigation legal proceeding or remedy in respect of
\nany such right, privilege, obligation, liability, penalty,
\nforfeiture or punishment as aforesaid; and any such
\ninvestigation, legal proceeding or remedy may be
\ninstituted, continued or enforced, any such penalty,
\nforfeiture or punishment may be imposed, as if the
\nRepealing Act or Regulation had not been passed. But
\nthe rule contained in Section 6 applies only if a
\ndifferent intention does not appear, and by enacting
\nSection 58(3) the Parliament has expressed a different
\nintention, for whereas the General Clauses Act keeps
\nalive the previous operation of the enactment 13.
\nrepealed, and things done and duly suffered, the rights,
\nprivileges, obligations or liabilities acquired or incurred,
\nand authorities the investigation, legal proceeding and
\nremedies in respect of rights, privileges, obligations,
\nliabilities, penalties, forfeitures and punishment and if
\nthe repealing Act or Regulation had not been passed,
\nSection 58(3) of Act 31 of 1950 directs that things
\ndone or actions taken in exercise of power conferred by
\nthe repealed statutes shall be deemed to be done or
\ntaken under the repealing Act as if that latter Act were
\nin force on the day on which such thing was done or
\naction was taken. The rule so enunciated makes a clear
\ndeparture from the rules enunciated in Section 6 of the
\nGeneral Clauses Act, 1897. By the first part of Section
\n58(3) which is in terms negative, the previous
\noperation of the repealed statutes survives the repeal.
\nThereby matters and transactions past and closed
\nremain operative; so does the previous operation of the
\nrepealed statute. But as pointed out by this Court in
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\nIndira Sohanlal’s case, [1955]2SCR1117 , the saving of
\nthe previous operation of the repealed law is not to be
\nread, as saving the future operation of the previous
\nlaw. The previous law stands repealed, and it has not
\nfor the future the partial operation as it is prescribed by
\nSection 6 of General Clauses Act. All things done and
\nactions taken under the repealed statute are deemed to
\nbe done or taken in exercise of powers conferred by or
\nunder the repealing Act, as if that Act were in force on
\nthe day on which that thing was done or action was
\ntaken. It was clearly the intention of the parliament
\nthat matters and transactions past and closed were not
\nto be deemed vacated by the repeal of the statute
\nunder which they were done. The previous operation of
\nthe statute repealed was also affirmed expressly but
\nthings done or actions taken Under the repealed statute
\nare to be deemed by fiction to have been done or taken
\nunder the repealing Act.”
\n59. In the case of State of Punjab vs. Mohar Singh: (supra) ,
\nthe Supreme Court observed thus:
\n\u201c8\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. These observations could not
\nundoubtedly rank higher than mere obiter dictum for
\nthey were not at all necessary for purposes of the case,
\nthough undoubtedly they are entitled to great respect.
\nIn agreement with this dictum of Sulaiman C.J. the
\nHigh Court of Punjab, in its judgment in the present
\ncase, has observed that where there is a simple repeal
\nand the Legislature has either not given its thought to
\nthe matter of prosecuting old offenders, or a provision
\ndealing with that question has been inadvertently
\nomitted, section 6 of the General Clauses Act will
\nundoubtedly be attracted. But no such inadvertence
\ncan be presumed where there has been a fresh
\nlegislation on the subject and if the new Act does not
\ndeal with the matter, it may be presumed that the
\nLegislature did not deem it fit to keep alive the liability
\nincurred under the old Act. In our opinion the approach
\nof the High Court to the question is not quite correct.
\nWhenever there is a repeal of an enactment, the
\nconsequences laid down in section 6 of the General
\nClauses Act will follow unless, as the section itself says,
\na different intention appears. In the case of a simple
\nrepeal there is scarcely any room for expression of a
\ncontrary opinion. But when the repeal is followed by
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\nfresh legislation on the same subject we would
\nundoubtedly have to look to the provisions of the new
\nAct, but only for the purpose of determining whether
\nthey indicate a different intention.
\nThe line of enquiry would be, not whether the new Act
\nexpressly keeps alive old rights and liabilities but
\nwhether it manifests an intention to destroy them.
\nWe cannot therefore subscribe to the broad proposition
\nthat section 6 of the General Clauses Act is ruled out
\nwhen there is repeal of an enactment followed by a
\nfresh legislation. Section 6 would be applicable in such
\ncases also unless the new legislation manifests an
\nintention incompatible with or contrary to the
\nprovisions of the section.
\nSuch incompatibility would have to be ascertained from
\na consideration of all the relevant provisions of the new
\nlaw and the mere absence of a saving clause is by itself
\nnot material. It is in the light of these principles that we
\nnow proceed to examine the facts of the present case.
\n60. In the case of Zile Singh vs. State of Haryana and Ors.:
\n(supra), the Supreme Court held thus:
\n\u201c13. It is a cardinal principle of construction that every
\nstatute is prima facie prospective unless it is expressly
\nor by necessary implication made to have a
\nretrospective operation. But the rule in general is
\napplicable where the object of the statute is to affect
\nvested rights or to impose new burdens or to impair
\nexisting obligations. Unless there are words in the
\nstatute sufficient to show the intention of the
\nLegislature to affect existing rights, it is deemed to be
\nprospective only. \u2018nova Constitution futuris formam
\nimponere debet non praeteritis’ – a new law ought to
\nregulate what is to follow, not the past. (See :
\nPrinciples of Statutory Interpretation by Justice G.P.
\nSingh, Ninth Edition, 2004 at p.438). It is not
\nnecessary that an express provision be made to make a
\nstatute retrospective and the presumption against
\nretrospectivity may be rebutted by necessary
\nimplication especially in a case where the new law is
\nmade to cure an acknowledged evil for the benefit of
\nthe community as a whole.
\n(ibid, p.440)
\n14. The presumption against retrospective operation is
\nnot applicable to declaratory statutes…….
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\nIn determining, therefore, the nature of the Act, regard
\nmust be had to the substance rather than to the form.
\nIf a new Act is “to explain’ an earlier Act, it would be
\nwithout object unless construed retrospective. An
\nexplanatory Act is generally passed to supply an
\nobvious omission or to clear up doubts as to the
\nmeaning of the previous Act. It is well settled that if a
\nstatute is curative or merely declaratory of the previous
\nlaw retrospective operation is generally intended.
\n……..
\nAn amending Act may be purely declaratory to clear a
\nmeaning of a provision of the principal Act which was
\nalready implicit. A clarificatory amendment of this
\nnature will have retrospective effect.
\n(ibid, pp.468-469).
\n15. Though retrospectivity is not to be presumed and
\nrather there is presumption against retrospectivity,
\naccording to Craies (Statute Law, Seventh Edition), it is
\nopen for the legislature to enact laws having
\nretrospective operation. This can be achieved by
\nexpress enactment or by necessary implication from
\nthe language employed. If it is a necessary implication
\nfrom the language employed that the legislature
\nintended a particular section to have a retrospective
\noperation, the Courts will give it such an operation. In
\nthe absence of a retrospective operation having been
\nexpressly given, the Courts may be called upon to
\nconstrue the provisions and answer the question
\nwhether the legislature had sufficiently expressed that
\nintention giving the Statute retrospectivity.
\nFour factors are suggested as relevant: (i) general
\nscope and purview of , the statute; (ii) the remedy
\nsought to be applied; (iii) the former state of the law;
\nand (iv) what it was the legislature contemplated
\n(p.388). The rule against retrospectivity does not
\nextend to protect from the effect of a repeal, a privilege
\nwhich did not amount to accrued right (p.392).
\n16. Where a Statute is passed for the purpose of
\nsupplying an obvious omission in a former statute or to
\n‘explain’ a former statute, the subsequent statute has
\nrelation back to the time when the prior Act was
\npassed. The rule against retrospectivity is inapplicable
\nto such legislations as are explanatory and declaratory
\nin nature. The classic illustration is the case of Att. Gen.
\nv. Pougett [1816] 2 Pri 381. By a Customs Act of 1873
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\n53 Geo. 3 a duty was imposed upon hides of 9s. 4d.,
\nbut the Act omitted to state that it was to be 9s. 4d.
\nper cwt., and to remedy this omission another Customs
\nAct (53 Geo. 3, c. 105) was passed later in the same
\nyear. Between the passing of these two Acts some
\nhides were exported, and it was contended that they
\nwere not liable to pay the duty of 9s. 4d. per cwt., but
\nThomson C.B., in giving judgment for the Attorney-
\nGeneral, said:
\n“The duty in this instance was in fact
\nimposed by the first Act, but the gross
\nmistake of the omission of the weight for
\nwhich the sum expressed was to have been
\npayable occasioned the amendment made
\nby the subsequent Act, but that had
\nreference to the former statute as soon as
\nit passed, and they must be taken together
\nas if they were one and the same Act.”
\n(p.395).
\n17. Maxwell states in his work on Interpretation of
\nStatutes, (Twelfth Edition) that the rule against
\nretrospective operation is a presumption only, and as
\nsuch it “may be overcome, not only by express words
\nin the Act but also by circumstances sufficiently strong
\nto displace it.” (p.225). If the dominant intention of the
\nlegislature can be clearly and doubtlessly spelt out, the
\ninhibition contained in the rule against perpetuity
\nbecomes of doubtful applicability as the “inhibition of
\nthe rule” is a matter of degree which would “vary
\nsecundum materiam” (p.226). Sometimes, where the
\nsense of the statute demands it or where there has
\nbeen an obvious mistake in drafting, a court will be
\nprepared to substitute another word or phrase for that
\nwhich actually appears in the text of the Act (p.231).
\n18. In a recent decision of this Court in National
\nAgricultural Cooperative Marketing Federation of India
\nLtd. And Anr. v. Union of India and Ors.,
\n(2003)181CTR(SC)1 , it has been held
\nthat there is no fixed formula for the
\nexpression of legislative intent to give
\nretrospectivity to an enactment. Every
\nlegislation whether prospective or
\nretrospective has to be subjected to the
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\nquestion of legislative competence. The
\nretrospectivity is liable to be decided on a
\nfew touchstones such as : (i) the words
\nused must expressly provide or clearly
\nimply retrospective operation; (ii) the
\nretrospectivity must be reasonable and not
\nexcessive or harsh, otherwise it runs the
\nrisk of being struck down as
\nunconstitutional; (iii) where the legislation
\nis introduced to overcome a judicial
\ndecision, the power cannot be used to
\nsubvert the decision without removing the
\nstatutory basis of the decision. There is no
\nfixed formula for the expression of
\nlegislative intent to give retrospectivity to
\nan enactment. A validating clause coupled
\nwith a substantive statutory change is only
\none of the methods to leave actions
\nunsustainable under the unamended
\nstatute, undisturbed. Consequently, the
\nabsence of a validating clause would not by
\nitself affect the retrospective operation of
\nthe statutory provision, if such
\nretrospectivity is otherwise apparent.
\n19. The Constitution Bench in Shyam Sunder and Ors.
\nv. Ram Kumar and Anr., AIR2001SC2472 , has held — ”
\nOrdinarily when an enactment declares the
\nprevious law, it requires to be given
\nretroactive effect. The function of a
\ndeclaratory statute is to supply an omission
\nor explain previous statute and when such
\nan Act is passed, it comes into effect when
\nthe previous enactment was passed. The
\nlegislative power to enact law includes the
\npower to declare what was the previous
\nlaw and when such a declaratory Act is
\npassed invariably it has been held to be
\nretrospective. Mere absence of use of word
\n‘declaration’ in an Act explaining what was
\nthe law before may not appear to be a
\ndeclaratory Act but if the Court finds an Act
\nas declaratory or explanatory it has to be
\nconstrued as retrospective.
\n” (p. 2487).
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\n20. In The Bengal Immunity Company Ltd. v. The State
\nof Bihar and Ors.,[1955]2SCR603 , Heydon’s case 3 C.
\nR.7a; 76 E.R.637 was cited with approval. Their
\nLordships have said —
\n“It is a sound rule of construction of a
\nstatute firmly established in England as far
\nback as 1584 when Heydon’s case was
\ndecided that –“……for the sure and true
\ninterpretation of all Statutes in general (be
\nthey penal or beneficial, restrictive or
\nenlarging of the common law) four things
\nare to be discerned and considered:-
\n1st. What was the common law before the
\nmaking of the Act.
\n2nd. What was the mischief and defect for
\nwhich the common law did not provide.,
\n3rd. What remedy the Parliament hath
\nresolved and appointed to cure the disease
\nof the Commonwealth., and
\n4th. The true reason of the remedy; and
\nthen the office of all the judges is always to
\nmake such construction as shall suppress
\nthe mischief, and advance the remedy, and
\nto suppress subtle inventions and evasions
\nfor continuance of the mischief, and pro
\nprivate commodo, and to add force and life
\nto the cure and remedy, according to the
\ntrue intent of the makers of the Act, pro
\nbono publico”.”
\n22. The State Legislature of Haryana intended to
\nimpose a disqualification with effect from 5.4.1994 and
\nthat was done. Any person having more than two living
\nchildren was disqualified on and from that day for being
\na member of municipality. However, while enacting a
\nproviso by way of an exception carving out a factsituation
\nfrom the operation of the newly introduced
\ndisqualification the draftsman’s folly caused the
\ncreation of trouble. A simplistic reading of the text of
\nthe proviso spelled out a consequence which the
\nLegislature had never intended and could not have
\nintended. It is true that the Second Amendment does
\nnot expressly give the amendment a retrospective
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\noperation. The absence of a provision expressly giving
\na retrospective operation to the legislation is not
\ndeterminative of its prospectivity or retrospectivity.
\nIntrinsic evidence may be available to show that the
\namendment was necessarily intended to have the
\nretrospective effect and if the Court can unhesitatingly
\nconclude in favour of retrospectivity, the Court would
\nnot hesitate in giving the Act that operation unless
\nprevented from doing so by any mandate contained in
\nlaw or an established principle of interpretation of
\nstatutes.
\n23. The text of Section 2 of the Second Amendment Act
\nprovides for the word “upto” being substituted for the
\nword “after”. What is the meaning and effect of the
\nexpression employed therein – “shall be substituted”.
\n24. The substitution of one text for the other preexisting
\ntext is one of the known and well-recognised
\npractices employed in legislative drafting. ‘Substitution’
\nhas to be distinguished from ‘supersession’ or a mere
\nrepeal of an existing provision.
\n25. Substitution of a provision results in repeal of the
\nearlier provision and its replacement by the new
\nprovision (See Principles of Statutory Interpretation,
\nibid, p.565). If any authority is needed in support of
\nthe proposition, it is to be found in West U.P. Sugar
\nMills Assn. and Ors. v. State of U.P. and Ors. – :
\n[2002]1SCR897 , State of Rajasthan v. Mangilal
\nPindwal – : (1997)IILLJ756SC , Koteswar Vittal Kamath
\nv. K. Rangappa Baliga and Co. – [1969]3SCR40 and
\nA.L.V.R.S.T. Veerappa Chettiar v. S. Michael and Ors. –
\nAIR1963SC933 . In West U.P. Sugar Mills Association
\nand Ors.’s case (supra) a three-Judges Bench of this
\nCourt held that the State Government by substituting
\nthe new rule in place of the old one never intended to
\nkeep alive the old rule. Having regard to the totality of
\nthe circumstances centering around the issue the Court
\nheld that the substitution had the effect of just deleting
\nthe old rule and making the new rule operative. In
\nMangilal Pindwal’s case (supra) this Court upheld the
\nlegislative practice of an amendment by substitution
\nbeing incorporated in the text of a statute which had
\nceased to exist and held that the substitution would
\nhave the effect of amending the operation of law during
\nthe period in which it was in force. In Koteswar’s case
\n(supra) a three-Judges Bench of this Court emphasized
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\nthe distinction between ‘supersession’ of a rule arid
\n‘substitution’ of a rule and held that the process of
\nsubstitution consists of two steps : first, the old rule is
\nmade to cease to exist and, next, the new rule is
\nbrought into existence in its place.
\n61. In the case of Yogendra Kumar Jaiswal and Ors. vs.
\nState of Bihar and Ors. : (supra), the Supreme Court observed
\nthus:
\n\u201c8. Section 14 provides for issuance of show cause
\nnotice by the Authorised Officer to the person
\nconcerned to explain his source of income and other
\nassets and why such money or property or both should
\nnot be declared to have been acquired by means of the
\noffence and be confiscated to the State Government.
\nSub-section (2) provides that where a notice Under
\nSub-section (1) to any person specifies any money or
\nproperty or both has been held on behalf of such
\nperson by any other person, a copy of the notice shall
\nalso be served upon such other person. Sub-section (3)
\nlays down that the evidence, information or particulars
\nbrought on record before the authorised officer shall
\nnot be used against the accused in the trial before the
\nspecial court. Section 15 deals with the confiscation of
\nproperty in certain cases. It provides a detailed
\nprocedure and obliges the authorised officer to follow
\nthe principles of natural justice. It prescribes a time
\nlimit for disposal of the proceeding and gives immense
\nstress on identification of property or money or both
\nwhich have been acquired by means of the offence and
\nfurther it makes the confiscation subject to the order
\npassed in appeal Under Section 17 of the Orissa Act. It
\nmay be noted here that the proviso to Section 15(3)
\nstipulates that the market price of the property
\nconfiscated, if deposited with the Authorised Officer, the
\nproperty shall not be confiscated. Section 16 lays down
\nthat after the issue of notice Under Section 14, any
\nmoney or property or both referred to in the said notice
\nare transferred by any mode whatsoever, such transfer
\nshall for the purposes of the proceedings under the
\nOrissa Act, be void and if such money or property or
\nboth are subsequently confiscated to the State
\nGovernment Under Section 15, then the transfer of
\nsuch money or property or both shall be deemed to be
\nnull and void. Section 17(1) enables the aggrieved
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\nperson by the order passed by an authorised officer to
\nprefer an appeal within thirty days from the date on
\nwhich the order appealed against was passed. Subsection
\n(2) provides that upon appeal being preferred
\nunder the said provision, the High Court may, after
\ngiving such parties, as it thinks proper, an opportunity
\nof being heard, pass such order as it thinks fit; Subsection
\n(3) requires the High Court to dispose of the
\nappeal within three months from the date it is preferred
\nand stay order, if any, passed in appeal shall not remain
\nin force beyond the period prescribed for disposal of
\nappeal. Sub-section (1) of Section 18 of the Orissa Act
\nempowers the State Government to take possession. It
\nstipulates that where any money or property has been
\nconfiscated to the State Government under the Act, the
\nconcerned authorised officer shall order the person
\naffected as well as any other person who may be in
\npossession of the money or property or both, to
\nsurrender or deliver possession thereof to the
\nconcerned authorised officer or to any person duly
\nauthorised by in this behalf, within thirty days of the
\nservice of the order. The proviso to the said Sub-section
\nstipulates that the authorised officer, on an application
\nbeing made in that behalf and being satisfied that the
\nperson affected is residing in the property in question,
\nmay instead of dispossessing him immediately from the
\nsame, permit such person to occupy it for a limited
\nperiod to be specified on payment of market rent to the
\nState Government and thereafter, such person shall
\ndeliver the vacant possession of the property. Subsection
\n(2) provides that if any person refuses or fails
\nto comply with an order made Under Sub-section (1),
\nthe authorised officer may take possession of the
\nproperty and may, for that purpose, use such force as
\nmay be necessary. Sub-section (3) confers powers on
\nthe authorised officer to requisition service of any
\npolice officer to assist and mandates the concerned
\npolice officer to comply with such requisition.
\nSection 15. Confiscation of property in certain cases –
\n(1)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026
\n(2)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.
\n(3) Where the authorised officer records a finding
\nunder this section to the effect that any money or
\nproperty or both have been acquired by means of the
\noffence, he shall declare that such money or property
\nor both shall, subject to the provisions of this Act,
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\nstand confiscated to the State Government free from
\nall encumbrances.
\nProvided that if the market price of the property
\nconfiscated is deposited with the authorised officer, the
\nproperty shall not be confiscated.
\n(4)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026…
\n(5)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026
\n(6)\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026…
\n147. The next facet of the said submission pertains to
\nretrospective applicability. The submission has been put
\nforth on the ground that by transfer of cases to the
\nSpecial Courts under the Orissa Act in respect of the
\naccused persons who are arrayed as accused under the
\n1988 Act, have been compelled to face harsher
\npunishment which is constitutionally not permissible. It
\nis contended that there was no interim confiscation
\nunder the 1988 Act but under the Orissa Act they have
\nto face confiscation. We have already opined that
\nconfiscation is not a punishment and, therefore, Article
\n20(1) is not attracted. Thus, the real grievance pertains
\nto going through the process of confiscation and
\nsuffering the same after the ultimate adjudication of
\nthe said proceeding which is subject to appeal.\u2026..\u2026\u2026.
\n151. We are absolutely conscious that the said
\njudgment was delivered in a different context. What is
\nprohibited Under Article 20(1) is imposition of greater
\npunishment that might have been imposed and
\nprohibition of a conviction of any person for violation of
\nlaw at the time of commission of the act. We repeat at
\nthe cost of repetition that confiscation being not a
\npunishment does not come in either of the categories.
\nThus viewed, the property of an accused facing trial
\nunder the 1988 Act could be attached and there can be
\nadministration by third party of the said property and
\neventual forfeiture after conviction. The term
\n“attachment” has been understood by this Court in
\nKerala State Financial Enterprises Ltd. v. Official
\nLiquidator, High Court of Kerala (2006) 10 SCC 709 in
\nthe following manner:
\n11. The word “attachment” would only
\nmean “taking into the custody of the law
\nthe person or property of one already
\nbefore the court, or of one whom it is
\nsought to bring before it”. It is used for
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\ntwo purposes: (i) to compel the
\nappearance of a Defendant; and (ii) to
\nseize and hold his property for the
\npayment of the debt. It may also mean
\nprohibition of transfer, conversion,
\ndisposition or movement of property by an
\norder issued by the court.
\n152. The legislature has thought it proper to change
\nthe nature and character of the interim measure. The
\nproperty obtained by ill-gotten gains, ii prima facie
\nfound to be such by the authorised officer, is to be
\nconfiscated. An accused has no vested right as regards
\nthe interim measure. He is not protected by any
\nconstitutional right to advance the plea that he cannot
\nbe made liable to face confiscation proceedings of the
\nproperty which has been accumulated, by illegal
\nmeans. That being the litmus test, the filament of
\nreasoning has to rest in favour of confiscation and not
\nagainst it. Therefore, we are of the considered view
\nthat the provision does not violate any constitutional
\nassurance.
\n62. In the case of Titaghur Paper Mills Co. Ltd. and Ors. vs.
\nState of Orissa and Ors.: (supra), Supreme Court, observed
\nthus:
\n\u201c6. We are constrained to dismiss these petitions on the
\nshort ground that the petitioners have an equally
\nefficacious alternative remedy by way of an appeal to
\nthe prescribed authority under Sub-section (1) of
\nSection 23 of the Act, then a second appeal to the
\nTribunal under Sub-section (3)(a) thereof, and
\nthereafter in the event the petitioners get no relief, to
\nhave the case stated to the High Court under Section
\n23 of the Act. In Raleigh Investment Co. Limited v.
\nGovernor General in Council, 74 I.A. 50 Lord Uthwart,
\nJ. in delivering the judgment of the Board observed
\nthat in the provenance of tax where the Act provided
\nfor a complete machinery which enabled an assessee to
\neffectively to raise in the courts the question of the
\nvalidity of an assessment denied an alternative
\njurisdiction to the High Court to interfere. It is true that
\nthe decision of the Privy Council in Raleigh Investment
\nCompany’s case, supra, was in relation to a suit
\nbrought for a declaration that an assessment made by
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\nthe Income Tax Officer was a nullity, and it was held by
\nthe Privy Council that an assessment made under the
\nmachinery provided by the Act, even if based on a
\nprovision subsequently held to be ultra vires, was not a
\nnullity like an order of a court lacking jurisdiction and
\nthat Section 67 of the Income Tax Act, 1922 operated
\nas a bar to the maintainability of such a suit. In dealing
\nwith the question whether Section 67 operated as a bar
\nto a suit to set aside or modify an assessment made
\nunder a provision of the Act which is ultra vires, the
\nPrivy Council observed:
\nIn construing the section it is pertinent, in their
\nLordships opinion to ascertain whether the Act contains
\nmachinery which enables an assessee effectively to
\nraise in the courts the question whether a particular
\nprovision of the Income Tax Act bearing on the
\nassessment made is or is not ultra vires. The presence
\nof such machinery, though by no means conclusive,
\nmarches with a construction of the section which denies
\nan alternative jurisdiction to inquire into the same
\nsubject-matter.
\n7. We are not oblivious of the fact that this Court in
\nK.S. Venkataraman and Co. v. State of Madras,
\n[1966]60ITR112(SC) , in a five-Judge Bench by a
\nmajority of 3 : 2 has dissented with the view expressed
\nby the Privy Council in Raleigh Investment Company’s
\ncase, supra, and held that an assessment made on the
\nbasis of a provision which is ultra vires is not an
\nassessment made under the Act. It was observed that
\nthe entire reasoning of the Judicial Committee was
\nbased upon the assumption that the question of ultra
\nvires can be canvassed and finally decided through the
\nmachinery provided under the Income Tax Act. The
\nmajority observed that the hierarchy of authorities set
\nup under the Act being creatures of statute were not
\nconcerned as to whether the provisions of the Act were
\nintra vires or not. If an assessee raises such a question,
\naccording to the decision of the majority in
\nVenkataraman’s case, supra, the Appellate Tribunal can
\nonly reject it on the ground that it has no jurisdiction to
\nentertain such objection or render any decision on it.
\nAs no such question can be raised or can even arise out
\nof the order of the Appellate Tribunal, the High Court
\ncannot possibly give any decision on the question of
\nultra vires because its jurisdiction under Section 66 is a
\nspecial advisory jurisdiction and its scope is strictly
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\nlimited. It can only decide questions of law that arise
\nout of the order of the Appellate Tribunal and that are
\nreferred to it. Further, an appeal to this Court under
\nSection 66A(2) does not enlarge the scope of the
\njurisdiction of this Court as this Court can only do what
\nthe High Court can under Section 66. It would therefore
\nappear that the majority decision in Venkataraman’s
\ncase, supra, rests on the principle that (i) An ultra vires
\nprovision cannot be regarded as a part of the Act at all,
\nand an assessment under such a provision is not “made
\nunder the Act” but is wholly without the jurisdiction and
\nis not directed by Section 67 of the Act. And (ii) The
\nquestion whether a provision is ultra vires or not
\ncannot be decided by any of the authorities created by
\nthe Act and therefore cannot be the subject matter of a
\nreference to the High Court or a subsequent appeal to
\nthis Court.
\n8. No such question arises in a case like the present
\nwhere the impugned orders of assessment are not
\nchallenged on the ground that they are based on a
\nprovision which is ultra vires. We are dealing with a
\ncase in which the entrustment of power to assess is not
\nin dispute, and the authority within the limits of his
\npower is a Tribunal of exclusive jurisdiction. The
\nchallenge is only to the regularity of the proceeding
\nbefore the learned Sales Tax Officer as also his
\nauthority to treat the gross turnover returned by the
\npetitioners to be the taxable turnover. Investment of
\nauthority to tax involves authority to tax transactions
\nwhich in exercise of his authority the Taxing Officer
\nregards as taxable, and not merely authority to tax
\nonly those transactions which are, on a true view of the
\nfacts and the law, taxable.
\n63. In the case of Thansingh Nathmal and Ors. vs. A.
\nMazid : (supra), the Supreme Court held thus:
\n7. Against the order of the Commissioner an order for
\nreference could have been claimed if the appellants
\nsatisfied the Commissioner or the High Court that a
\nquestion of law arose out of the order. But the
\nprocedure provided by the Act to invoke the jurisdiction
\nof the High Court was bypassed. The appellants moved
\nthe High Court challenging the competence of the
\nProvincial Legislature to extend the concept of sale, and
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\ninvoked the extraordinary jurisdiction of the High Court
\nunder Art. 226 and sought to reopen the decision of the
\ntaxing authorities on questions of fact.
\nThe jurisdiction of the High Court under Art. 226 of the
\nConstitution is couched in wide terms and the exercise
\nthereof is not subject to any restrictions except the
\nterritorial restrictions which are expressly provided in
\nthe Article. But the exercise of the jurisdiction is
\ndiscretionary; it is not exercised merely because it is
\nlawful to do so. The very amplitude of the jurisdiction
\ndemands that it will ordinarily be exercised subject to
\ncertain self-imposed limitations. Resort so that
\njurisdiction is not intended as an alternative remedy for
\nrelief which may be obtained in a suit or other mode
\nprescribed by statute. Ordinarily the Court will not
\nentertain a petition for a writ under Art. 226, where the
\npetitioner has an alternative remedy which, without
\nbeing unduly onerous, provides an equally efficacious
\nremedy. Again the High Court does not generally enter
\nupon a determination of questions which demand an
\nelaborate examination of evidence to establish the right
\nto enforce which the writ is claimed.
\nThe High Court does not therefore act as a court of
\nappeal against the decision of a court or tribunal, to
\ncorrect errors of fact, and does not by assuming
\njurisdiction under Art. 226 trench upon an alternative
\nremedy provided by statute for obtaining relief. Where
\nit is open to the aggrieved petitioner to move another
\ntribunal, or even itself in another jurisdiction for
\nobtaining redress in the manner provided by a statute,
\nthe High Court normally will not permit, by entertaining
\na petition under Art. 226 of the Constitution, the
\nmachinery created under the stature to be by-passed,
\nand will leave the party applying to it to seek resort to
\nthe machinery so set up.
\n64. In the case of State of H.P. and Ors. vs. Gujarat Ambuja
\nCement Ltd. and Ors.: (supra), the Supreme Court observed
\nthus:
\n\u201c17. We shall first deal with the plea regarding
\nalternative remedy as raised by the appellant-State.
\nExcept for a period when Article 226 was amended by
\nthe Constitution (42 Amendment) Act, 1976, the power
\nrelating to alternative remedy has been considered to
\nbe a rule of self imposed limitation. It is essentially a
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\nrule of policy, convenience and discretion and never a
\nrule of law. Despite the existence of an alternative
\nremedy it is within the jurisdiction of discretion of the
\nHigh Court to grant relief under Article 226 of the
\nConstitution. At the same time, it cannot be lost sight
\nof that though the matter relating to an alternative
\nremedy has nothing to do with the jurisdiction of the
\ncase, normally the High Court should not interfere if
\nthere is an adequate efficacio4us alternative remedy. If
\nsomebody approaches the High Court without availing
\nthe alternative remedy provided the High Court should
\nensure that he has made out a strong case or that
\nthere exist good grounds to invoke the extra-ordinary
\njurisdiction.
\n18. Constitution Benches of this Court in K.S. Rashid
\nand Sons v. Income Tax Investigation Commission and
\nOrs. [1954]25ITR167(SC) ; Sangram Singh v. Election
\nTribunal, Kotah and Ors. [1955]2SCR1 ; Union of India
\nv. T.R. Varma (1958)IILLJ259SC ; State of U.P. and
\nOrs. v. Mohammad Nooh AIR 1958 SC 86; and K.S.
\nVenkataraman and Co. (P) Ltd. v. State of Madras
\n[1966]60ITR112(SC) , held that Article 226 of the
\nConstitution confers on all the High Courts a very wide
\npower in the matter of issuing writs. However, the
\nremedy of writ is an absolutely discretionary remedy
\nand the High Court has always the discretion to refuse
\nto grant any writ if it is satisfied that the aggrieved
\nparty can have an adequate or suitable relief
\nelsewhere. The Court, in extraordinary circumstances,
\nmay exercise the power if it comes to the conclusion
\nthat there has been a breach of principles of natural
\njustice or procedure required for decision has not been
\nadopted.
\n19. Another Constitution Bench of this Court in State of
\nMadhya Pradesh and Anr. v. Bhailal Bhai etc. ,
\n[1964]6SCR261 , held, that the remedy provided in a
\nwrit jurisdiction is not intended to supersede
\ncompletely the modes of obtaining relief by an action in
\na civil court or to deny defence legitimately open in
\nsuch actions. The power to give relief under Article 226
\nof the Constitution is a discretionary power. Similar
\nview has been re-iterated in N.T. Veluswami Thevar v.
\nG. Raja Nainar and Ors. AIR1959SC422 ; Municipal
\nCouncil, Khurai and Anr. v. Kamal Kumar and Anr.
\n[1965]2SCR653 ; Siliguri Municipality and Ors. v.
\nAmalendu Das and Ors. [1984]146ITR624(SC) ; S.T.
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\n(129 of 160) [CW-2915\/2019]
\nMuthusami v. K. Natarajan and Ors. [1988]2SCR759 ;
\nR.S.R.T.C. and Anr. v. Krishna Kant and Ors. :
\n(1995)IILLJ728SC ; Kerala State Electricity Board and
\nAnr. v. Kurjen E. Kalathil and Ors. AIR2000SC2573 ; A.
\nVenkatasubbiah Naidu v. S. Chekkappan and Ors. :
\nAIR2000SC3032 ; and L.L. Sudhakar Reddy and Ors. v.
\nState of Andhra Pradesh and Ors. AIR2001SC3205 ;
\nShri Sant Sadguru Janardan Swami (Moingiri Maharaj)
\nSahakari Dugdha Utpadak Sanstha and Anr. v. State of
\nMaharashtra and Ors. : AIR2001SC3982 ; Pratap Singh
\nand Anr. v. State of Haryana AIR2002SC3385 and
\nG.K.N. Driveshafts (India) Ltd. v. Income Tax Officer
\nand Ors. (2003)179CTR(SC)11 .
\n20. In Harbans Lal Sahnia v. Indian Oil Corporation
\nLtd : AIR2003SC2120 , this Court held that the rule of
\nexclusion of writ jurisdiction by availability of
\nalternative remedy is a rule of discretion and not one of
\ncompulsion and the Court must consider the pros and
\ncons of the case and then may interfere if it comes to
\nthe conclusion that the petitioner seeks enforcement of
\nany of the fundamental rights; where there is failure of
\nprinciples of natural justice or where the orders or
\nproceedings are wholly without jurisdiction or the vires
\nof an Act is challenged.
\n22. In G. Veerappa Pillai v. Raman & Raman Ltd.
\n[1952]1SCR583 ; Assistant Collector of Central Excise
\nv. Dunlop India Ltd. 1985ECR4(SC); Ramendra Kishore
\nBiswas v. State of Tripura (1999)IILLJ192SC ;
\nShivgonda Anna Patil and Ors. v. State of Maharashtra
\nand Ors. AIR1999SC2281; C.A. Abraham v. I.T.O.
\nKottayam and Ors. [1961]41ITR425(SC); Titaghur
\nPaper Mills Co. Ltd. v. State of Orissa and Anr.
\n[1983]142ITR663(SC); H.B. Gandhi v. Gopinath and
\nSons; Whirlpool Corporation v. Registrar of Trade Marks
\nand Ors. AIR1999SC22; Tin Plate Co. of India Ltd. v.
\nState of Bihar and Ors. AIR1999SC74; Sheela Devi v.
\nJaspal Singh AIR1999SC2859 and Punjab National Bank
\nv. O.C. Krishnan and Ors. AIR2001SC3208 , this Court
\nheld that where hierarchy of appeals is provided by the
\nstatute, party must exhaust the statutory remedies
\nbefore resorting to writ jurisdiction.
\n23. Where under a statute there is an allegation of
\ninfringement of fundamental rights or when on the
\nundisputed facts the taxing authorities are shown to
\nhave assumed jurisdiction which they do not possess
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\ncan be the grounds on which the writ petitions can be
\nentertained. But normally, the High Court should not
\nentertain writ petitions unless it is shown that there is
\nsomething more in a case, something going to the root
\nof the jurisdiction of the officer, something which would
\nshow that it would be a case of palpable injustice to the
\nwrit petitioner to force him to adopt the remedies
\nprovided by the statute. It was noted by this Court in L.
\nHirday Narain v. Income Tax Officer, Bareilly
\n[1970]78ITR26(SC) that if the High Court had
\nentertained a petition despite availability of alternative
\nremedy and heard the parties on merits it would be
\nordinarily unjustifiable for the High Court to dismiss the
\nsame on the ground of non exhaustion of statutory
\nremedies; unless the High Court finds that factual
\ndisputes are involved and it would not be desirable to
\ndeal with them in a writ petition.
\n65. In the case of Commissioner of Income Tax and Ors. vs.
\nChhabil Dass Agarwal: (supra), the Supreme Court observed
\nthus:
\n13. In Nivedita Sharma v. Cellular Operators Assn. of
\nIndia (2011) 14 SCC 337, this Court has held that
\nwhere hierarchy of appeals is provided by the statute,
\nparty must exhaust the statutory remedies before
\nresorting to writ jurisdiction for relief and observed as
\nfollows:
\n\u201c12. In Thansingh Nathmal v. Supdt. of Taxes AIR
\n1964 SC 1419 this Court adverted to the rule of selfimposed
\nrestraint that the writ petition will not be
\nentertained if an effective remedy is available to
\nthe aggrieved person and observed: (AIR p. 1423,
\npara 7).
\n7. … The High Court does not therefore act as a
\ncourt of appeal against the decision of a court or
\ntribunal, to correct errors of fact, and does not by
\nassuming jurisdiction under Article 226 trench upon an
\nalternative remedy provided by statute for obtaining
\nrelief. Where it is open to the aggrieved Petitioner to
\nmove another tribunal, or even itself in another
\njurisdiction for obtaining redress in the manner
\nprovided by a statute, the High Court normally will not
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\npermit by entertaining a petition under Article 226 of
\nthe Constitution the machinery created under the
\nstatute to be bypassed, and will leave the party
\napplying to it to seek resort to the machinery so set
\nup.
\n13. In Titaghur Paper Mills Co. Ltd. v. State
\nof Orissa (1983) 2 SCC 433 this Court
\nobserved: (SCC pp. 440-41, para 11)
\n11. … It is now well recognised that where
\na right or liability is created by a statute
\nwhich gives a special remedy for enforcing
\nit, the remedy provided by that statute
\nonly must be availed of. This rule was
\nstated with great clarity by Willes, J. in
\nWolverhampton New Waterworks Co. v.
\nHawkesford 141 ER 486 in the following
\npassage: (ER p. 495)
\n… There are three classes of cases in
\nwhich a liability may be established
\nfounded upon a statute. … But there is a
\nthird class viz. where a liability not existing
\nat common law is created by a statute
\nwhich at the same time gives a special and
\nparticular remedy for enforcing it.
\n…The remedy provided by the statute
\nmust be followed, and it is not competent
\nto the party to pursue the course
\napplicable to cases of the second class. The
\nform given by the statute must be adopted
\nand adhered to.
\nThe rule laid down in this passage was approved by the
\nHouse of Lords in Neville v. London Express
\nNewspapers Ltd. 1919 AC 368 and has been reaffirmed
\nby the Privy Council in Attorney General of Trinidad and
\nTobago v. Gordon Grant and Co. Ltd. 1935 AC 532 (PC)
\nand Secy. of State v. Mask and Co. AIR 1940 PC 105 It
\nhas also been held to be equally applicable to
\nenforcement of rights, and has been followed by this
\nCourt throughout. The High Court was therefore
\njustified in dismissing the writ petitions in limine.
\n14. In Mafatlal Industries Ltd. v. Union of
\nIndia(1997) 5 SCC 536 B.P. Jeevan Reddy, J.
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\n(speaking for the majority of the larger Bench)
\nobserved: (SCC p. 607, para 77)
\n77. … So far as the jurisdiction of the High Court
\nunder Article 226–or for that matter, the
\njurisdiction of this Court under Article 32–is
\nconcerned, it is obvious that the provisions of the
\nAct cannot bar and curtail these remedies. It is,
\nhowever, equally obvious that while exercising the
\npower under Article 226\/Article 32, the Court would
\ncertainly take note of the legislative intent manifested
\nin the provisions of the Act and would exercise
\ntheir jurisdiction consistent with the provisions of
\nthe enactment.
\n16. In the instant case, the Act provides complete
\nmachinery for the assessment\/re-assessment of
\ntax, imposition of penalty and for obtaining relief in
\nrespect of any improper orders passed by the
\nRevenue Authorities, and the Assessee could not be
\npermitted to abandon that machinery and to invoke
\nthe jurisdiction of the High Court under Article 226 of
\nthe Constitution when he had adequate remedy open to
\nhim by an appeal to the Commissioner of Income Tax
\n(Appeals). The remedy under the statute, however,
\nmust be effective and not a mere formality with no
\nsubstantial relief. In Ram and Shyam Co. v. State of
\nHaryana (1985) 3 SCC 267 this Court has noticed
\nthat if an appeal is from “Caesar to Caesar’s wife” the
\nexistence of alternative remedy would be a mirage
\nand an exercise in futility.
\n66. In the case of Harbanslal Sahnia and Ors. vs. Indian Oil
\nCorpn. Ltd. and Ors. (supra), the Supreme Court held thus:
\n\u201c7. So far as the view taken by the High Court that the
\nremedy by way of recourse to arbitration clause was
\navailable to the appellants and therefore the writ
\npetition filed by the appellants was liable to be
\ndismissed, suffice it to observe that the rule of
\nexclusion of writ jurisdiction by availability of an
\nalternative remedy is a rule of discretion and not one of
\ncompulsion. In an appropriate case in spite of
\navailability of the alternative remedy, the High Court
\nmay still exercise its writ jurisdiction in at least three
\ncontingencies: (i) where the writ petition seeks
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\nenforcement of any of the Fundamental Rights; (ii)
\nwhere there is failure of principles of natural justice or,
\n(iii) where the orders or proceedings are wholly without
\njurisdiction or the vires of an Act and is challenged
\n[See Whirlpool Corporation v. Registrar of Trade Marks,
\nMumbai and Ors., AIR1999SC22 . The present case
\nattracts applicability of first two contingencies.
\nMoreover, as noted, the petitioners’ dealership, which is
\ntheir bread and butter came to be terminated for an
\nirrelevant and non-existent cause. In such
\ncircumstances, we feel that the appellants should have
\nbeen allowed relief by the High Court itself instead of
\ndriving them to the need of initiating arbitration
\nproceedings.
\n67. In the case of Whirlpool Corporation vs. Registrar of
\nTrade Marks, Mumbai and Ors.: (supra) , the Supreme Court
\nheld thus:
\n\u201c51. It is in the background of the above provisions
\nthat the question relating to the jurisdiction of the
\n“Registrar” and the “High Court”, which individually and
\nseparately constitute “TRIBUNAL” within the meaning
\nof Section 2(1)(x), has to be considered.
\n52. The functions and extent of jurisdiction of the
\nregistrar and that of the High Court which, incidentally,
\nhas also been constituted as the appellate authority of
\nthe Registrar, have been distinctly set out in different
\nprovisions of the Act. There are, however, certain
\nmatters for which jurisdiction has been given to the
\n“TRIBUNAL” which, by its definition, includes the “High
\nCourt” and the “Registrar” and therefore, the question
\nis “can both be said to have “concurrent” jurisdiction
\nover matters as are set out for example, in Sections 9,
\n10, 26, 45, 46, 47 and 56″.
\n53. If the proceeding is cognisable both by the
\nRegistrar and the High Court, which of the two will have
\njurisdiction to entertain such proceeding to the
\nexclusion of the other or the jurisdiction being
\nconcurrent, can the proceeding go on simultaneously
\nbefore the High Court and the Registrar, resulting, may
\nbe, in conflicting decisions at the end, is a question
\nwhich seems to be answered by the words “before
\nwhich the proceeding concerned is pending” occurring
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\nin the definition of “TRIBUNAL” in Section 2(1)(x) of the
\nAct. Let us test whether the answer is correct.
\n54. Section 56 contemplates proceedings of varying
\nnature. The proceedings contemplated by Sub-section
\n(1) relate to the cancellation of Trade Mark or varying
\nthe registration of Trade Mark, on the ground that the
\ncondition on which the registration was granted, was
\neither violated or there was failure in observing the
\ncondition of registration. These proceedings may be
\nentertained either by the High Court or the Registrar on
\nthe application, and, at the instance, of the “person
\naggrieved”.
\n55. The proceedings contemplated by Sub-section (2)
\nof Section 56 relate to the absence or omission of an
\nentry in the Register or an entry having been made
\nwithout sufficient cause or an entry wrongly remaining
\non the Register or there being any error or defect in an
\nentry in the Register. Such proceedings may also be
\nentertained either by the Registrar or the High Court on
\nan application made in the prescribed manner by a
\n“person aggrieved”. The High Court or the registrar
\nmay, in these proceedings, pass an order either for
\nmaking an entry, or expunging or varying the entry. In
\nthese proceedings which may be pending either before
\nthe High court or the Registrar, it would be open to
\neither of them to decide any further question which
\nmay be necessary or expedient to decide in connection
\nwith the rectification of the Register. Obviously, this
\ngives very wide jurisdiction to the High Court or the
\nRegistrar working as a Tribunal as the jurisdiction is not
\nlimited to the proceedings pending under Sub-section
\n(1) or Sub-section (2) but extends also to decide, in
\nthe same proceedings, any other question which may
\nlegitimately arise in connection with the rectification
\nproceedings.
\n56. The jurisdiction conferred on the High Court or the
\nRegistrar under Sub-section (1) or Sub-section (2) can
\nalso be exercised suo motu subject to the condition
\nthat a notice is issued to the parties concerned and an
\nopportunity of hearing is given to them before passing
\nany order contemplated by Subsection (1) or Subsection
\n(2).
\n57. The Registrar and the High Court have also been
\ngiven the jurisdiction under this Section to order that a
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\nTrade Mark registered in Part A shall be shifted to Part
\nB of the Register.
\n58. An order of rectification, if passed by the High
\nCourt, is implemented by the Registrar by rectifying the
\nRegister in conformity with the order passed by the
\nHigh Court.
\n59. The extent of jurisdiction conferred by Section 56
\non the Registrar to rectify the Register, is, however
\ncurtailed by Section 107 which provides that an
\napplication for rectification shall, in certain situations,
\nbe made only to the High Court. These situations are
\nmentioned in Sub-section (1) of Section 107, namely,
\nwhere in a suit for infringement of the registered Trade
\nMark, the validity of the registration is questioned by
\nthe defendant or the defendant, in that suit, raises the
\ndefence contemplated by Section 30(1)(d) in which the
\nacts which do not constitute an infringement, have
\nbeen specified, and the plaintiff in reply to this defence
\nquestions the validity of the defendant’s Trade Mark. In
\nthese situations, the validity of the registration of the
\nTrade Mark can be determined only by the High Court
\nand not by the Registrar.
\n60. Section 107 thus impels the proceedings to be
\ninstituted only in the High Court. The jurisdiction of the
\nRegistrar in those cases which are covered by Section
\n107 is totally excluded. Significantly, Section 107(2)
\nprovides that if an application for rectification is made
\nto the registrar Under Section 46 or Section 47(4) or
\nSection 56, the Registrar may, if he thinks fit, refer that
\napplication, at any stage of the proceeding, to the High
\nCourt.
\n61. Similarly, Under Section 111 of the Act, in a
\npending suit relating to infringement of a Trade Mark, if
\nit is brought to the notice of the Court that any
\nrectification proceedings relating to plaintiffs or
\ndefendant’s trade Mark are pending either before the
\nRegistrar or the High Court, the proceedings in the suit
\nshall be stayed pending final decision of the High Court
\nor the Registrar. Even if such proceedings are not
\npending either before the Registrar or the High Court,
\nthe trial court, if pritna facie satisfied that the plea
\nregarding invalidity of plaintiff s or defendant’s Trade
\nMark is tenable, may frame an issue and adjourn the
\ncase for three months to enable the party concerned to
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\napply to the High Court for rectification of the Register.
\nIf within three months, the party concerned does not
\napproach the High Court, the plea regarding invalidity
\nof Trade Mark would be treated as abandoned but if
\nsuch an application has been given hearing,, the suit
\nwould be stayed awaiting final decision of the High
\nCourt. The finding of the High Court would bind the
\nparties and the issue relating to the invalidity of Trade
\nMark would be decided in terms of those findings.
\n62. In this background, the phrase “before which the
\nproceeding concerned is pending” stands out
\nprominently to convey the idea that if the proceeding is
\npending before the “Registrar”, it becomes the
\n“TRIBUNAL” Similarly, if the proceeding is pending
\nbefore the “High Court”, then the High Court has to be
\ntreated as “TRIBUNAL”. Thus, the jurisdiction of the
\nRegistrar and the High Court, though apparently
\nconcurrent in certain matters, is mutually exclusive.
\nThat is to say, if a particular proceeding is pending
\nbefore the registrar, any other proceeding, which may,
\nin any way, relate to the pending proceeding, will have
\nto be initiated before and taken up by the Registrar and
\nthe High Court will act as the Appellate Authority of the
\nRegistrar Under Section 109: It is obvious that if the
\nproceedings are pending before the High Court, the
\nregistrar will keep his hands off and not touch those or
\nany other proceedings which may, in any way, relate to
\nthose proceedings, as the High Court, which has to be
\nthe High Court having jurisdiction as set out in Section
\n3, besides being the Appellate Authority of the
\nRegistrar has primacy over the Registrar in all matters
\nunder the Act. Any other interpretation of the definition
\nof “TRIBUNAL” would not be in consonance with the
\nscheme of the Act or the contextual background set out
\ntherein and may lead to conflicting decision on the
\nsame question by the Registrar and the High Court
\nbesides generating multiplicity of proceedings.
\n63. Learned counsel for the respondent – Chinar Trust,
\nat this stage, invoked the Rule of Punctuation in English
\nGrammar and contended that the definition of
\n“TRIBUNAL” is amply clear and requires no
\ninterpretative exercise as there is a distinction between
\nthe “Registrar” and the “High Court” inasmuch as the
\nRegistrar will have jurisdiction irrespective of the
\npendency of any proceeding, the High Court will have
\njurisdiction only when “proceeding concerned is
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\npending before it. This he tried to show by pointing out
\nthat the words “as the case may be” are placed
\nbetween two commas, one at the beginning
\nimmediately after the word “Registrar” and the other at
\nthe end, with the result that the words “Tribunal means
\nthe Registrar” stand out distinctly, while the words
\n“High Court before which the proceeding concerned is
\npending” stand out separately as an independent
\nphrase. It is contended that the words “before which
\nthe proceeding concerned is pending” will not be
\napplicable to the Registrar and, therefore, the Registrar
\ncan exercise the jurisdiction Under Section 56
\nirrespective of pendency of any “proceeding”.
\n68. In the case of Vodafone International Holdings B.V. vs.
\nUnion of India (UOI) and Ors.: (supra) , the Supreme Court
\nheld thus:
\n3. In the facts and circumstances of this case, thus, we
\nare of the opinion that the question in regard to the
\njurisdictional issue, may be determined, by the
\nauthority concerned as a preliminary issue, in terms of
\nthe decision of this Court in Management of Express
\nNewspapers (Private) Ltd., Madras v. The Workers and
\nOrs. (1962)IILLJ227SC , Wherein this Court has held as
\nunder:
\n(15) The High Court undoubtedly has jurisdiction to ask
\nthe Industrial Tribunal to stay its hands and to embark
\nupon the preliminary enquiry itself. The jurisdiction of
\nthe High Court to adopt this course cannot be, and is
\nindeed not disputed. But would it be proper for the
\nHigh Court to adopt such a course unless the ends of
\njustice seen to makes is necessary to do so? Normally,
\nthe questions of fact, though they may be jurisdictional
\nfacts the decision of which depends upon the
\nappreciation of evidence, should, be left to be tried by
\nthe Special Tribunals constituted for that purpose. If
\nand after the Special Tribunals try the preliminary issue
\nin respect of such jurisdictional facts, it would be open
\nto the aggrieved party to take that matter before the
\nHigh Court by a writ petition and ask for an appropriate
\nwrit. Speaking generally, it would not be proper or
\nappropriate that the initial jurisdiction of the Special
\nTribunal to deal with these jurisdictional facts should be
\ncircumvented and the decision of such a preliminary
\nissue brought before a High Court in its writ
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\njurisdiction. We wish to point out that in making these
\nobservations, we do not propose to lay down any fixed
\nor inflexible rule; whether or not even the preliminary
\nfacts should be tried by a High Court in a writ petition,
\nmust naturally depend upon the circumstances of each
\ncase and upon the nature of the preliminary issue
\nraised between the parties. Having regard to the
\ncircumstances of the present dispute, we think the
\nCourt of Appeal was right in taking the view that the
\npreliminary issue should more appropriately be dealt
\nwith by the Tribunal. The Appeal Court has made it
\nclear that any party who feels aggrieved by the finding
\nof the Tribunal on this preliminary issue may move the
\nHigh Court in accordance with law. Therefore, we are
\nnot prepared to accept Mr. Shastri’s argument that the
\nappeal Court was wrong in reversing the conclusion of
\nthe Trial Judge in so far as the Trial Judge proceeded to
\ndeal with the question as to whether the action of the
\nappellant was a closure or a lockout.
\n69. In the case of The Management of Express Newspapers
\nLtd. vs. Workers and Staff Employed under it and Ors.: , the
\n(supra) Supreme Court held thus:
\n\u201c6\u2026\u2026\u2026\u2026..In regard to the main point of controversy
\nbetween the parties as to the validity of the reference
\nitself, the Appeal Court took the view that the questions
\nwhich had to be decided in dealing with the appellant’s
\ncontention that the reference was invalid, were
\ncomplex questions of fact and that it would be
\nappropriate that the said questions should be fully
\ninvestigated and tried in the first instance by the
\nIndustrial Tribunal itself. In other words, the Appeal
\nCourt held that though the High Court had jurisdiction
\nto entertain an application for a writ of Prohibition even
\nat the initial stage of the proceedings commenced
\nbefore a Special Tribunal, it would not be proper that a
\nwrit of prohibition should be issued unless the disputed
\nquestions of fact were tried by the said Special Tribunal
\nin the first instance. On this view, the order passed by
\nthe trial Judge has been modified and the disputes
\nreferred to the Industrial Tribunal for its adjudication
\nhave been remitted to the said Tribunal for its disposed
\nin accordance with law. In making this Order, the
\nAppeal Court has indicated the nature of the dispute
\nand the questions of fact which the Industrial Tribunal
\nmay have to try and the limits of its jurisdiction. In the
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\nresult, the writ apple No. 73\/1959 succeeded whereas
\nwrit appeal No. 85\/1959 failed. It is this decision of the
\nCourt of Appeal that is challenged before us by Mr.
\nViswanatha Sastri on behalf of the appellant.
\n15. The High Court undoubtedly has jurisdiction to ask
\nthe Industrial Tribunal to stay its hands and to embark
\nupon the preliminary enquiry itself. The jurisdiction of
\nthe High Court to adopt this course cannot be, and is
\nindeed not, disputed. But would it be proper for the
\nHigh Court to adopt such a course unless the ends of
\njustice seem to make it necessary to do so ? Normally,
\nthe questions of fact, though they may be jurisdictional
\nfacts the decision of which depends upon the
\nappreciation of evidence, should be left to be tried by
\nthe Special Tribunals constituted for that purpose. If
\nand after the Special Tribunals try the preliminary issue
\nin respect of such jurisdictional facts, it would be open
\nto the aggrieved party to take that matter before the
\nHigh Court by a writ petition and ask for an appropriate
\nwrit. Speaking generally, it would not be proper or
\nappropriate that the initial jurisdiction of the Special
\nTribunal to deal with these jurisdictional facts should be
\ncircumvented and the decision of such a preliminary
\nissue be brought before a High Court in its writ
\njurisdiction. We wish to point out that in making these
\nobservations, we do not propose to lay down any fixed
\nor inflexible rule; whether or not even the preliminary
\nfact should be tried by a High Court in a write petition,
\nmust naturally depend upon the circumstances of each
\ncase and upon the nature of the preliminary issue
\nraised between the parties. Having regard to the
\ncircumstances of the present dispute, we think the
\nCourt of Appeal was right in taking the view that the
\npreliminary issue should more appropriately dealt with
\nby the Tribunal. The Appeal Court has made it clear
\nthat any party who feels aggrieved by the finding of the
\nTribunal on this preliminary issue may move the High
\nCourt in accordance with law. Therefore, we are not
\nprepared to accept Mr. Sastri’s argument that the
\nAppeal Court was wrong in reversing the conclusion of
\nthe trial Judge in so for as the Trial Judge proceeded to
\ndeal with the question as to whether the action of the
\nappellant was a closure or a lockout.
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n70. In Raghuvinder Singh Vs Dy. Commissioner Of Income
\nTax, (Benami Transaction) And Initiating Officer (supra )
\nUnder The Prevention Of Benami Transaction Act 2016, this Court
\nobserved thus:
\nGrounds have been raised regarding non-compliance of
\nprinciples of natural justice as well as non-compliance
\nof the provisions contained under the Benami
\nTransaction (Prohibition) Act, 1988, specially Section 24
\nwith regard to service of notice and also with regard to
\napplication of mind relating to the order of approval.
\nHaving noted the aforesaid, this Court finds that it
\nwould not be appropriate for this Court at this stage to
\nexamine the veracity and legality of the notice of
\nattachment issued way back as on 22\/12\/2017 as of
\nnow as the matter is already pending before the
\nadjudicating authority. However, all the objections,
\nwhich the petitioner has raised before this Court, can
\nbe taken up by him before the adjudicating authority
\nand it would be for the adjudicating authority to decide
\nand examine all the objections and pass a reasoned
\norder. It is expected from the adjudicating authority to
\ngive reasonable time to the petitioner to put up his
\nobjections in writing and examine the entire issue
\nthread-bear after giving fair opportunity to all the
\nparties.
\n71. In Great Pacific General Trading Company (Limited
\nLiability Partnership), Vs. Union of India, Through the
\nSecretary, Ministry of Finance, Department of Revenue,
\n(supra), it has been observed thus:
\n\u201cIt is contended that the transaction questioned by the
\nrespondent No.3 in the order dated 18.11.2017 does
\nnot fall in the category of benami transaction.
\nAfter hearing learned counsel for the petitioner and
\nafter perusing the material available on record and the
\norder dated 18.11.2017 passed by the Initiating Officer
\nunder Section 24(4) of the PBPT Act, it cannot be said
\nthat the respondent No.3 has passed the order dated
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\n18.11.2017 without there being any material on record.
\nThis Court at this stage cannot record a finding to the
\neffect that Shri Aditya Lodha cannot be termed as
\nbenamidar or the property in question is not a benami
\nproperty. It is for the adjudicating authority to
\nadjudicate upon the matter, referred to it by the
\nInitiating Officer, after providing opportunity of hearing
\nto Shri Aditya Lodha as per the provisions of Section 26
\nof the PBPT Act.
\n72. The above judgement was challenged in D.B. Spl. Appl. Writ
\nNo. 1315\/2018, decided on 22\/10\/2018: Great Pacific General
\nTrading Company (Limited Liability Partnership) Vs. Union
\nof India, through the Secretary, Ministry of Finance,
\nDepartment of Revenue holding thus:
\n\u201cWe are constraint to note that the averments made in
\npara 5 of the Special Appeal are factual. As per the said
\nreply to para 5, Shri Aditya Lodha and his son Shri
\nManan Lodha retired on 01.06.2015 and only Shri
\nTarachand Parakh and his son Shri Aditya Parakh
\nremained the partners in the LLP till 10.07.2017.
\nDuring this period, the transactions were carried out by
\nShri Aditya Lodha alone and Shri Tara Chand Parakh
\nand his son Shri Aditya Parakh were not even aware of
\nthe said transactions, which has given rise to bonafide
\nsuspicion that the property is benami property. Hence,
\nwe agree with the learned Single Judge that in case, we
\ngo into the same at this stage, it would effect the
\nfinding with respect to the property as to whether the
\nsame was benami or not. Accordingly, no ground is
\nmade out to interfere in the order impugned.\u201d
\n73. In the case , Dheeru Gond Vs. Union of India(supra),
\nHigh Court of Madhya Pradesh held thus:
\n\u201cIt is apparent that the learned Single Judge of this
\nCourt in WP No.10280\/2017 filed by one Kailash
\nAssudani challenging the show cause notice of similar
\nnature has dismissed the petition holding that the
\nprovision of Section 26 of the Act, 1988 is a complete
\ncode in itself providing ample opportunities to the
\nassessee concerned, and apart from that there is
\nremedy of appeal available to the petitioner. The order
\npassed by the learned Single a Judge of this Court in
\nWP No.10280\/2017 has been confirmed by the Division
\nBench of this Court in WA No.704\/2017 with the ad
\nfollowing observations:-
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\nWe do not find any merit in the present M
\nappeal. It is the Adjudicating Authority who
\nis to decide the question of Benami nature
\nof the property. The proceedings under
\nSection 24 of the Act contemplates the
\nissuance of show cause notice as to why
\nthe property specified in the notice should
\nnot be treated as Benami property.
\nHowever, the substantive order of treating
\nthe property as Benami is required to be
\npassed by Adjudicating Authority under
\nSection 26 C of the Act only. Therefore, the
\nappellant is at liberty to take all such plea
\nof law and facts as may be available to the
\nappellant before the Adjudicating Authority.
\nThe Adjudicating Authority shall decide the
\nBenami nature of the property in
\naccordance with law.
\n74. In the case of WA-704-2017, Kailash Assudani vs
\nCommissioner Of Income Tax: decided on 16 August, 2017, it
\nhas been observed thus:
\n\u201cWe do not find any merit in the present appeal. It is
\nthe Adjudicating Authority who is to decide the
\nquestion of Benami nature of the property. The
\nproceedings under Section 24 of the Act contemplates
\nthe issuance of show cause notice as to why the
\nproperty specified in the notice should not be treated
\nas Benami property. However, the substantive order of
\ntreating the property as Benami is required to be
\npassed by Adjudicating Authority under Section 26 of
\nthe Act only. Therefore, the appellant is at liberty to
\ntake all such plea of law and facts as may be available
\nto the appellant before the Adjudicating Authority. The
\nAdjudicating Authority shall decide the Benami nature
\nof the property in accordance with law.\u201d
\n75. In the case of R. Rajagopal Reddy (Dead) by L.Rs. and
\nOrs. (supra), it has been held thus:
\n\u201c11. Before we deal with these six considerations which
\nweighed with the Division Bench for taking the view
\nthat Section 4 will apply retrospectively in the sense
\nthat it will get telescoped into all pending proceedings,
\nhowsoever earlier they might have been filed, if they
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\nwere pending at different stages in the hierarchy of the
\nproceedings even upto this Court, when Section 4 came
\ninto operation, it would be apposite to recapitulate the
\nsalient feature of the Act. As seen earlier, the preamble
\nof the Act itself states that it is an act to prohibit
\nbenami transactions and the right to recover property
\nheld benami, for matters connected therewith or
\nincidental thereto. Thus it was enacted to efface the
\nthen existing rights of the real owners of properties
\nheld by others benami. Such an act was not given any
\nretrospective effect by the legislature. Even when we
\ncome to Section 4, it is easy to visualise that Subsection
\n(1). of Section 4 states that no suit, claim or
\naction to enforce any right in respect of any property
\nheld benami against the person in whose name the
\nproperty is held or against any other shall lie by or on
\nbehalf of a person claiming to be the real owner of such
\nproperty. As per Section 4(1) no such suit shall
\nthenceforth lie to recover the possession of the
\nproperty held benami by the defendant. Plaintiffs right
\nto that effect is sought to be taken away and any suit
\nto enforce such a right after coming into operation of
\nSection 4(1) that is 19th May, 1988, shall not lie. The
\nlegislature in its wisdom has nowhere provided in
\nSection 4(1) that no such suit, claim or action pending
\non the date when Section 4 came into force shall not be
\nproceeded with and shall stand abated. On the
\ncontrary, clear legislative intention is seen from the
\nwords “no such claim, suit or action shall lie”, meaning
\nthereby no such suit, claim or action shall be permitted
\nto be filed or entertained or admitted to the portals of
\nany Court for seeking such a relief after coming into
\nforce of Section 4(1). In Collins English Dictionary,
\n1979 Edition as reprinted subsequently, the word ‘lie’
\nhas been defined in connection with suits and
\nproceedings. At page 848 of the Dictionary while
\ndealing with topic No. 9 under the definition of term ‘lie’
\nit is stated as under :-
\nFor an action, claim appeal ect. to subsist; be
\nmaintainable or admissible.
\nThe word ‘lie’ in connection with the suit, claim or
\naction is not defined by the Act. If we go by the
\naforesaid dictionary meaning it would mean that such
\nsuit, claim or action to get any property declared
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\nbenami will not be admitted on behalf of such plaintiff
\nor applicant against the concerned defendant in whose
\nname the property is held on and from the date on
\nwhich this prohibition against entertaining of such suits
\ncomes into force. With respect, the view taken by that
\nSection 4(1) would apply even to such pending suits
\nwhich were already filed and entertained prior to the
\ndate when the Section came into force and which has
\nthe effect of destroying the then existing right of
\nplaintiff in connection with the suit property cannot be
\nsustained in the face of the clear language of Section
\n4(1). It has to be visualised that the legislature in its
\nwisdom has not expressly made Section 4
\nretrospective. Then to imply by necessary implication
\nthat Section 4 would have retrospective effect and
\nwould cover pending litigations filed prior to coming
\ninto force of the Section would amount to taking a view
\nwhich would run counter to the legislative scheme and
\nintent projected by various provisions of the Act to
\nwhich we have referred earlier. It is, however, true as
\nheld by the Division Bench that on the express
\nlanguage of Section 4(1) any right inhering in the real
\nowner in respect of any property held benami would
\nget effaced once Section 4(1) operated, even if such
\ntransaction had been entered into prior to the coming
\ninto operation of Section 4(1), and hence-after Section
\n4(1) applied no suit can lie in respect to such a past
\nbenami transaction. To that extent the Section may be
\nretroactive. To highlight this aspect we may take an
\nillustration. If a benami transaction has taken place in
\n1980 and suit is filed in June 1988 by the plaintiff
\nclaiming that he is the real owner of the property and
\ndefendant is merely a benamidar and the consideration
\nhas flown from him then such a suit would not lie on
\naccount of the provisions of Section 4(1). Bar against
\nfiling, entertaining and admission of such suits would
\nhave become operative by June, 1988 and to that
\nextent Section 4(1) would take in its sweep even past
\nbenami transactions which are sought to be litigated
\nupon after coming into force of the prohibitory
\nprovision of Section 4(1); but that is the only effect of
\nthe retroactivity of Section 4(1) and nothing more than
\nthat. From the conclusion that Section 4(1) shall apply
\neven to past benami transactions to the aforesaid
\nextent, the next step taken by the Division Bench that
\ntherefore, the then existing rights got destroyed and
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\neven though suits by real owners were filed prior to
\ncoming into operation of Section 4(1) they would not
\nsurvive, does not logically follow.
\n12. So far as Section 4(2) is concerned, all that is
\nprovided is that if a suit is filed by a plaintiff who claims
\nin his favour and holds the property in his name, once
\nSection 4(2) applies, no defence will be permitted or
\nallowed in any such suit, claim or action by or on behalf
\nof a person claiming to be the real owner of such
\nproperty held benami. The disallowing of such a
\ndefence which earlier was available, itself, suggests
\nthat a new liability or restriction is imposed by Section
\n4(2) on a pre- existing right of the defendant. Such a
\nprovision also cannot be said to be retrospective or
\nretroactive by necessary implication. It is also pertinent
\nto note that Section 4(2) does not expressly seek to
\napply retrospectively. So far as such a suit which is
\ncovered by the sweep of Section 4(2) is concerned, the
\nprohibition of Section 4(1) cannot apply to it as it is not
\na claim or action filed by the plaintiff to enforce right in
\nrespect of any property held benami. On the contrary,
\nit is a suit, claim or action flowing from the sale deed or
\ntitle deed in the name of the plaintiff. Even though such
\na suit have been filed prior to 19.5.1988, if before the
\nstage of filing of defence by the real owner is reached,
\nSection 4(2) becomes operative from 19th May, 1988,
\nthen such a defence, as laid down by Section 4(2) will
\nnot be allowed to such a defendant. However, that
\nwould not mean that Section 4(1) and 4(2) only on that
\nscore can be treated to be impliedly retrospective so as
\nto cover all the pending litigations in connection with
\nenforcement of such rights of real owners who are
\nparties to benami transactions entered into prior to the
\ncoming into operation of the Act and specially Section 4
\nthereof. It is also pertinent to note that Section 4(2)
\nenjoins that no such defence ‘shall be allowed’ in any
\nclaim, suit or action by or on behalf of a person
\nclaiming to be the real owner of such property. That is
\nto say no such defence shall be allowed for the first
\ntime after coming into operation of Section 4(2). If
\nsuch a defence is already allowed in a pending suit
\nprior to the coming into operation of Section 4(2),
\nenabling an issue to be raised on such a defence, then
\nthe Court is bound to decide the issue arising from such
\nan already allowed defence as at the relevant time
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\nwhen such defence was allowed Section 4(2) was out of
\npicture. Section 4(2) nowhere uses the words “No
\ndefence based on any right in respect of any property
\nheld benami whether against the person in whose
\nname the property is held or against any other person,
\nshall be allowed to be raised or continued to be raised
\nin any suit.” With respect, it was wrongly assumed by
\nthe Division Bench that such an already allowed
\ndefence in a pending suit would also get destroyed
\nafter coming into operation of Section 4(2). We may at
\nthis stage refer to one difficulty projected by learned
\nadvocate for the respondents in his written
\nsubmissions, on the applicability of Section 4(2). These
\nsubmissions read as under:-
\nSection 4(1) places a bar on a plaintiff
\npleading ‘benami’, while Section 4(2)
\nplaces a bar on a defendant pleading
\n‘benami’, after the coming into force of the
\nAct. In this context, it would be anomalous
\nif the bar in Section 4 is not applicable if a
\nsuit pleading ‘benami’ is already filed prior
\nto the prescribed date, and it is treated as
\napplicable only to suit which he filed
\nthereafter. It would have the effect of
\nclassifying the so-called ‘real’ owners into
\ntwo classes – those who stand in the
\nposition of plaintiffs and those who stand in
\nthe position of defendants. This may be
\nclarified by means of an illustration. A and
\nB are ‘real’ owners who have both
\npurchased properties in say 1970, in the
\nnames of C and D respectively who are
\nostensible owners viz. benamidars. A files
\na suit in February 1988 i.e. before the
\ncoming into force of the Act against C, for
\na declaration of his title saying that C is
\nactually holding it as his benamidar.
\nAccording to the petitioner’s argument,
\nsuch a plea would be open to A even after
\ncoming into force of the Act, since the suit
\nhas already been laid. On the other hand,
\nif D files a suit against B at the same for
\ndeclaration and injunction, claiming himself
\nto be the owner but B’s opportunity to file
\na written statement comes in say
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\nNovember 1988 when the Act has already
\ncome into force, he in his written
\nstatement cannot plead that D is a
\nbenamidar and that he, B is the real owner.
\nThus A and B, both ‘real’ owners, would
\nstand on a different footing, depending
\nupon whether they would stand in the
\nposition of plaintiff or defendant. It is
\nrespectfully submitted that such a
\ndifferential treatment would not be rational
\nor logical.
\n13. According to us this difficulty is inbuilt in Section
\n4(2) and does not provide the rationale to hold that
\nthis Section applies retrospectively. The legislature
\nitself thought it fit to do so and there is no challenge to
\nthe vires on the ground of violation of Article 14 of the
\nConstitution. It is not open to us to re-write the section
\nalso. Even otherwise, in the operation of Section 4(1)
\nand (2), no discrimination can be said to have been
\nmade amongst different real owners of property, as
\ntried to be pointed out in the written objections. In
\nfact, those cases in which suits are filed by real owners
\nor defences are allowed prior to corning into operation
\nof Section 4(2), would form a separate class as
\ncompared to those cases where a stage for filing such
\nsuits or defences has still not reached by the time
\nSection 4(1) and (2) starts operating. Consequently,
\nlatter type of cases would form a distinct category of
\ncases. There is no question of discrimination being
\nmeted out while dealing with these two classes of cases
\ndifferently. A real owner who has already been allowed
\ndefence on that ground prior to coming into operation
\nof Section 4(2) cannot be said to have been given a
\nbetter treatment as compared to the real owner who
\nhas still to take up such a defence and in the meantime
\nhe is hit by the prohibition of Section 4(2). Equally
\nthere cannot be any comparison between a real owner
\nwho has filed such suit earlier and one who does not
\nfile such suit till Section 4(1) comes into operation. All
\nreal owners who stake their claims regarding benami
\ntransactions after Section 4(1) and (2) came into
\noperation are given uniform treatment by these
\nprovisions, whether they come as plaintiffs or as
\ndefendants. Consequently, the grievances raised in this
\nconnection cannot be sustained.\u201d
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n76. In the case of State Bank of Travancore and another Vs.
\nMathew K.C. (supra) it has been held thus:
\n\u201c13. In Ikbal (supra), it was observed that the action of
\nthe Bank Under Section 13(4) of the ‘SARFAESI Act’
\navailable to challenge by the aggrieved Under Section
\n17 was an efficacious remedy and the institution
\ndirectly Under Article 226 was not sustainable, relying
\nupon Satyawati Tandon (Supra), observing:
\n27. No doubt an alternative remedy is not
\nan absolute bar to the exercise of
\nextraordinary jurisdiction Under Article 226
\nbut by now it is well settled that where a
\nstatute provides efficacious and adequate
\nremedy, the High Court will do well in not
\nentertaining a petition Under Article 226.
\nOn misplaced considerations, statutory
\nprocedures cannot be allowed to be
\ncircumvented.
\n***
\n28…….In our view, there was no
\njustification whatsoever for the learned
\nSingle Judge to allow the borrower to
\nbypass the efficacious remedy provided to
\nhim Under Section 17 and invoke the
\nextraordinary jurisdiction in his favour
\nwhen he had disentitled himself for such
\nrelief by his conduct. The Single Judge was
\nclearly in error in invoking his
\nextraordinary jurisdiction Under Article 226
\nin light of the peculiar facts indicated
\nabove. The Division Bench also erred in
\naffirming the erroneous order of the Single
\nJudge.
\n77. In the case of CIT, New Delhi Vs. Ram Kishan Dass
\n(supra), the Apex Court of the land held thus:
\n\u201c24. We find no substance in the submission urged on
\nbehalf of the Assessees that to adopt an interpretation
\nwhich we have placed on the provisions of Section
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\n142(2C) would enable the assessing officer to extend
\nthe period of limitation for making an assessment
\nUnder Section 153B. Explanation (iii) to Section
\n153B(1), as it stood at the material time, provided for
\nthe exclusion of the period commencing from the date
\non which the assessing officer had directed the
\nAssessee to get his accounts audited Under Sub-section
\n(2A) of Section 142 and ending on the day on which
\nthe assesee is required to furnish a report under that
\nSub-section. The day on which the Assessee is required
\nto furnish a report of the audit Under Sub-section (2A)
\nmarks the culmination of the period of exclusion for the
\npurpose of limitation. Where the assessing officer had
\nextended the time, the period, commencing from the
\ndate on which the audit was ordered and ending with
\nthe date on which the Assessee is required to furnish a
\nreport, would be excluded in computing the period of
\nlimitation for framing the assessment Under Section
\n153B. The principle governing the exclusion of time
\nremains the same. The act on which the exclusion
\nculminates is the date which the assessing officer fixes
\noriginally, or on extension for submission of the report.
\n25. The issue as to whether the amendment which has
\nbeen brought about by the legislature is intended to be
\nclarificatory or to remove an ambiguity in the law must
\ndepend upon the context. The Court would have due
\nregard to (i) the general scope and purview of the
\nstatute; (ii) the remedy sought to be applied; (iii) the
\nformer state of the law; and (iv) what power that the
\nlegislature contemplated (See Zile Singh v. State of
\nHaryana (2004) 8 SCC 1). The decision in Sedco Forex
\nInternational Drill Inc. v. Commissioner of Income Tax
\n[2005] 279 ITR 310 (SC); (2005) 12 SCC 717 on which
\nlearned Counsel for the assesses relied involved a
\nsubstitution of the Explanation to Section 9(1)(ii) of the
\nIT Act, 1961 with effect from 1 April 2000. A two Judge
\nBench of this Court held that given the legislative
\nhistory of Section 9(1)(ii), it can only be assumed that
\nit was deliberately introduced with effect from 1 April
\n2000 and was therefore intended to be prospective.
\nThis was also so construed by the CBDT, and in the
\nexplanatory notes to the provisions of the Finance Act,
\n1999. As we have indicated, interpretation is a matter
\nof determining the path on the basis of statutory
\ncontext and legislative history. In taking the view that
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\nwe have, we have also taken note of the fact that the
\nsame view was adopted by several High Courts. Among
\nthem are (i) the Punjab and Haryana High Court in
\nJagatjit Sugar Mills Co. Ltd. v. Commissioner of Income
\nTax (1994) 74 Taxman 8 (Pun. & Har.); [1994] 210 ITR
\n468; (ii) the Kerala High Court in Commissioner of
\nIncome Tax, Cochin v. Popular Automobiles (2011) 333
\nITR 308; and (iii) the Allahabad High Court in
\nGhaziabad Development Authority v. Commissioner of
\nIncome Tax, Ghaziabad (UP) (2011) 12 Taxman.com
\n334 (Allahabad). The decision of the Kerala High Court
\nin Popular Automobiles (supra) is the subject matter of
\nCivil Appeal No. 2951 of 2012 in these proceedings.
\n78. In the case of Canbank Financial Services Ltd. vs. The
\nCustodian and Ors. (supra), the Supreme Court observed thus:
\n\u201c67. The evil of benami transaction was sought to be
\ncurbed by reason of the provisions of the Urban Land
\n(Ceiling and Regulation) Act 1976, the State Ceiling
\nLaws, Income Tax Act 1961 as amended by the
\nTaxation Laws (Amendment) Act 1975 (See Sections
\n281 and 281A of the Income Tax Act), Section 5 of the
\nGift Tax Act 1958, Section 34B of the Wealth Tax Act
\nand Section 5(1) of the Estate Duty Act (since
\nrepealed). It is only with that view the Benami
\nTransactions (Prohibition) Act, 1988 prohibiting the
\nright to recover benami transaction was enacted.
\nSection 5(1) provided that all properties held benami
\nshall be subject to acquisition as different from
\nforfeiture provided for in the Smugglers and Foreign
\nExchange Manipulators (Forfeiture of Property) Act,
\n1976. But even Section 5 had not been made workable
\nas no rules under Section 8 of the Act for acquisition of
\nproperty held benami were framed.\u201d
\n79. Applying the principles deducible from the opinions of the
\nApex Court of the land as referred to and relied upon by the
\nlearned counsel for the parties; it is evident that High Court could
\ninterfere in exercise of writ jurisdiction, if, the conditions
\nprecedent to the exercise of jurisdiction under the statutory
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\nprovisions did not exist even at the stage of notice issued. Thus,
\nthe High Courts have power in appropriate cases to prohibit
\nexecutive authority from acting without jurisdiction. Moreover, if
\nexecutive authority exercised the power without jurisdiction that
\nwould subject an individual to lengthy proceedings and
\nunnecessary harassment. Hence, to prevent such lengthy
\nproceedings and unnecessary harassment, recourse to jurisdiction
\nunder Article 226 and\/or227 of the Constitution is not prohibited.
\nFurther, the legislative drafting is more than an ordinary prose
\nwhich differs in provenance, features and its import as to the
\nmeaning attached thereto and presumptions as to intendment of
\nthe legislation.
\n80. By now, it is well settled law that unless a contrary intention
\nis reflected, a legislation is presumed and intended to be
\nprospective. For in the normal course of human behavior, one is
\nentitled to arrange his affairs keeping in view the laws for the time
\nbeing in force and such arrangement of affairs should not be
\ndislodged by retrospective application of law. The principle of law
\nknown as lex prospicit non prospicit (law looks forward not
\nbackward), is a well known and accepted principle. The
\nretrospective legislation is contrary to general principle for
\nlegislation by which the conduct of mankind is to be regulated
\nwhen introduced for the first time to deal with future acts ought
\nnot to change the character of past transactions carried out in the
\nfaith of the then existing law (vide Phillips Vs. Eyre (1870)LR 6 QB
\n1). Thus, the principle against retrospectivity is the principle of
\n\u2018fairplay\u2019 and unless there is a clear and unambiguous intendment
\nfor retrospective effect to the legislation which affects accrued
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\nrights or imposes obligations or castes new duties or attaches a
\nnew disability is to be treated as prospective.
\n81. It is trite law that an explanatory or declaratory Act is
\nintended to supply an obvious omission or is enacted to clear
\ndoubts as to the meaning of the previous Act. While retrospective
\noperation is generally intended as to declaratory or curative
\nprovisions, which is supplied with the \u2018language\u2019 “shall be deemed
\nalways to have meant”. Therefore, in absence of clarity
\namendment being declaratory or curative in the face of
\nunambiguous or confusion in the pre-amended provisions; the
\nsame is not required to be treated as curative or declaratory
\namendment. Viewed in the light of the settled legal proposition,
\nas aforesaid, Benami Amendment Act, 2016, neither appears to be
\nclarificatory nor curative. Moreover, by way of amendment penal
\nconsequences have been introduced providing for confiscation of
\nthe benami property and enhanced punishment.
\n82. In the case of Prakash and Ors. (supra), the Apex Court of
\nthe land while dealing with the very Benami Amendment Act,
\n2016, held thus:
\n\u201c17. The text of the amendment itself clearly provides
\nthat the right conferred on a ‘daughter of a coparcener’
\nis ‘on and from the commencement of Hindu
\nSuccession (Amendment) Act, 2005’. Section 6(3) talks
\nof death after the amendment for its applicability. In
\nview of plain language of the statute, there is no scope
\nfor a different interpretation than the one suggested by
\nthe text of the amendment. An amendment of a
\nsubstantive provision is always prospective unless
\neither expressly or by necessary intendment it is
\nretrospective Shyam Sunder v. Ram Kumar (2001) 8
\nSCC 24, Paras 22 to 27. In the present case, there is
\nneither any express provision for giving retrospective
\neffect to the amended provision nor necessary
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\nintendment to that effect. Requirement of partition
\nbeing registered can have no application to statutory
\nnotional partition on opening of succession as per
\nunamended provision, having regard to nature of such
\npartition which is by operation of law. The intent and
\neffect of the Amendment will be considered a little
\nlater. On this finding, the view of the High Court cannot
\nbe sustained.
\n18. Contention of the Respondents that the
\nAmendment should be read as retrospective being a
\npiece of social legislation cannot be accepted. Even a
\nsocial legislation cannot be given retrospective effect
\nunless so provided for or so intended by the legislature.
\nIn the present case, the legislature has expressly made
\nthe Amendment applicable on and from its
\ncommencement and only if death of the coparcener in
\nquestion is after the Amendment. Thus, no other
\ninterpretation is possible in view of express language of
\nthe statute. The proviso keeping dispositions or
\nalienations or partitions prior to 20th December, 2004
\nunaffected can also not lead to the inference that the
\ndaughter could be a coparcener prior to the
\ncommencement of the Act. The proviso only means
\nthat the transactions not covered thereby will not affect
\nthe extent of coparcenary property which may be
\navailable when the main provision is applicable.
\nSimilarly, Explanation has to be read harmoniously with
\nthe substantive provision of Section 6(5) by being
\nlimited to a transaction of partition effected after 20th
\nDecember, 2004. Notional partition, by its very nature,
\nis not covered either under proviso or under Subsection
\n5 or under the Explanation.\u201d
\n83. By now, it is well settled law that a substantive provision
\nunless specifically made retrospective or otherwise intended by
\nthe Parliament should always be held to be prospective. The power
\nto confiscate and consequent forfeiture of rights or interests are
\ndrastic being penal in nature, and therefore, such statutes are to
\nbe read very strictly. However, there can be no exercise of powers
\nunder such statutes by way of extension or implication (vide
\nO.Konavalov (supra).
\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
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\n84. In the case of D.L.F. Qutab Enclave Complex Educational
\nCharitable Trust (supra), the Apex Court of the land in no
\nuncertain terms observed that extraordinary legislation must be
\nstrictly construed and a penal statute must receive strict
\nconstruction. The Supreme Court further observed that the
\nmischief of rule, if applied, in view of amendment made would be
\nin infraction to the provisions of Article 20 of the Constitution of
\nIndia, cannot be given retrospective effect. Similar is the position
\noperating in the instant batch of cases at hand. The rights
\naccrued in favour of any person owing to a transaction in the
\nnature of contract protected under a statute, in that event
\ntransgration\/violation of those rights could only be by a legislation
\nwith retrospective effect.
\n85. In view of the settled legal proposition that no authority,
\nmuch less, a quasi judicial authority, can confer jurisdiction on
\nitself by deciding a jurisdictional fact wrongly; is a question that is
\nalways open for scrutiny by the High Court in an application under
\nArticle 226\/227 of the Constitution of India. The very question of
\ncorrectness and legality of the issuance of notice can be examined
\nin exercise of writ jurisdiction.
\n86. In the case of Mangathai Ammal (died) through L.Rs. & ors.
\n(supra), the Apex Court of the land while dealing with issue of
\nretrospective effect of the Benami Amendment Act, 2016, in
\nunambiguous terms held that Benami Transaction Act would not
\nbe applicable retrospectively. At this juncture, it would be
\nrelevant to take note of the text of para 12 of the said judgment
\nwhich reads thus:
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\n\u201c12. It is required to be noted that the benami
\ntransaction came to be amended in the year 2016. As
\nper Section 3 of the Benami Transaction (Prohibition)
\nAct 1988, there was a presumption that the
\ntransaction made in the name of the wife and children
\nis for their benefit. By Benami Amendment Act, 2016,
\nSection 3(2) of the Benami Transaction Act, 1988 the
\nstatutory presumption, which was rebuttable, has
\nbeen omitted. It is the case on behalf of the
\nRespondents that therefore in view of omission of
\nSection 3(2) of the Benami Transaction Act, the plea
\nof statutory transaction that the purchase made in the
\nname of wife or children is for their benefit would not
\nbe available in the present case. Aforesaid cannot be
\naccepted. As held by this Court in the case of Binapani
\nPaul (Supra) the Benami Transaction (Prohibition) Act
\nwould not be applicable retrospectively. Even
\notherwise and as observed hereinabove, the Plaintiff
\nhas miserably failed to discharge his onus to prove
\nthat the Sale Deeds executed in favour of Defendant
\nNo. 1 were benami transactions and the same
\nproperties were purchased in the name of Defendant
\nNo. 1 by Narayanasamy Mudaliar from the amount
\nreceived by him from the sale of other ancestral
\nproperties.\u201d
\n87. Article 20 of the Constitution of India is fundamental right
\nguaranteed under Part-III of the Constitution and the penal
\nconsequences emanating from the Benami Amendment Act, 2016,
\nin infraction to the mandate of fundamental rights guaranteed
\nunder Article 20 of the Constitution; cannot be given retrospective
\neffect in absence of a clear stipulation by the Parliament on
\nretrospectivity.
\n88. In the case of Joseph Isharat (supra), relying upon the
\nopinion of the Apex Court of the land in the case of R. Rajagopal
\nReddy (Dead) by L.Rs. and Ors. (supra) while examining the
\nprovisions of amendment introduced by the Legislature through
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\nBenami Amendment Act, 2016, made effective from 1st
\nNovember, 2016, the Bombay High Court observed thus:
\n4. Under the Benami Act, as it stood on the date of
\nthe suit as well as on the date of filing of written
\nstatement and passing of the decree by the courts
\nbelow, provided for the definition of a “benami
\ntransaction” under clause (a) of Section 2. Under that
\nprovision, any transaction in which property is
\ntransferred to one person for consideration paid or
\nprovided by another came within the definition of
\n“benami transaction”. Section 3 of the Benami Act, in
\nsub-section (1), provided that no person shall enter
\ninto any benami transaction. Sub-section (2)
\ncontained two exceptions to the prohibition contained
\nin sub-section (1). The first exception, contained in
\nclause (a) of sub-section (2), was in respect of
\npurchase of property by any person in the name of his
\nwife or unmarried daughter. In the case of such
\npurchase, it was to be presumed, unless the contrary
\nwas proved, that the property was purchased for the
\nbenefit of the wife or unmarried daughter, as the case
\nmay be. Simultaneously, Section 4 of the Benami Act
\ncontained a prohibition in respect of right to recover
\nproperty held benami. Sub-section (1) provided that
\nno suit, claim or action to enforce any right in respect
\nof any property held benami against the person in
\nwhose name the property is held, or against any other
\nperson, shall lie by or on behalf of a person claiming
\nto be the real owner of such property. Sub-section (2)
\nmade provisions likewise in respect of a defence
\nbased on a plea of benami transaction. Sub-section
\n(2) provided that no defence based on any right in
\nrespect of any property held benami, whether against
\nthe person in whose name the property is held or
\nagainst any other person, shall be allowed in any suit,
\nclaim or action by or on behalf of a person claiming to
\nbe the real owner of such property. There was a
\ntwofold exception to this restriction. First was in
\nrespect of the person in whose name the property is
\nheld being a coparcener in a Hindu undivided family
\nand the property being held for the benefit of the
\ncoparceners of the family. The second exception was
\nin respect of the person, in whose name the property
\nwas held, being a trustee or other person standing in
\na fiduciary capacity and the property being held for
\nthe benefit of another person for whom he was such
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\ntrustee or towards whom he stood in such capacity.
\nThe present suit was filed when these provisions were
\nin operation. These provisions continued to apply even
\nwhen the written statement was filed by the
\nDefendant and the suit was heard and decreed by
\nboth the courts below. The legal provisions continued
\nto apply even when the second appeal was filed
\nbefore this court. It is only now during the pendency
\nof the second appeal, when it has come up for final
\nhearing, that there is a change in law. The Benami Act
\nhas been amended by the Parliament in 2016 with the
\npassing of the Benami Transactions (Prohibition)
\nAmendment Act, 2016. This amendment has come
\ninto effect from 01 November 2016. In the Amended
\nAct the definition of “benami transaction” has
\nundergone a change. Under the Amended Act “benami
\ntransaction” means (under Section 2(9) of the Act) a
\ntransaction or an arrangement where a property is
\ntransferred to, or is held by, a person, and the
\nconsideration for such property has been provided, or
\npaid by, another person; and the property is held for
\nthe immediate or future benefit, direct or indirect, of
\nthe person who has provided the consideration. There
\nare four exceptions to this rule. The first is in respect
\nof a karta or a member of a Hindu undivided family
\nholding the property for the benefit of the family. The
\nsecond exception is in respect of a person standing in
\na fiduciary capacity holding the property for the
\nbenefit of another person towards whom he stands in
\nsuch capacity. The third exception is in the case of an
\nindividual who purchases the property in the name of
\nhis spouse or child, the consideration being provided
\nor paid out of the known sources of the individual.
\nThe fourth exception is in the case of purchase of
\nproperty in the name of brother or sister or lineal
\nascendant or descendant where the names of such
\nbrother or sister or lineal ascendant or descendant, as
\nthe case may be, and the individual appear as joint
\nowners in any document. Sub-section (1) of Section 3
\ncontains the very same prohibition as under the
\nunamended Act, in that it prohibits all benami
\ntransactions. Section 4 likewise prohibits suits, claims
\nor actions or defences based on the plea of benami as
\nin the case of the unamended Act. The submission is
\nthat under this scheme of law, step-daughter not
\nhaving been defined under the Benami Act, but having
\nbeen defined under the Income Tax Act, 1961, by
\nvirtue of sub-section (31) of Section 2 of the amended
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\nBenami Act, the meaning of the expression will be the
\none assigned to it under the Income Tax Act. The
\ndefinition of daughter under the Income Tax Act
\nadmits of a step-child within it. It is submitted that
\nunder the amended definition of “benami transaction”,
\nthus, there is a clear exception in respect of a
\npurchase made in the name of a step-daughter by an
\nindividual provided, of course, the consideration has
\nbeen provided or paid out of known sources of the
\nindividual.
\n7. What is crucial here is, in the first place, whether
\nthe change effected by the legislature in the Benami
\nAct is a matter of procedure or is it a matter of
\nsubstantial rights between the parties. If it is merely a
\nprocedural law, then, of course, procedure applicable
\nas on the date of hearing may be relevant. If, on the
\nother hand, it is a matter of substantive rights, then
\nprima facie it will only have a prospective application
\nunless the amended law speaks in a language “which
\nexpressly or by clear intention, takes in even pending
\nmatters.”. Short of such intendment, the law shall be
\napplied prospectively and not retrospectively.
\n8. As held by the Supreme Court in the case of R.
\nRajagopal Reddy v. Padmini Chandrasekharan (1995)
\n2 SCC 630, Section 4 of the Benami Act, or for that
\nmatter, the Benami Act as a whole, creates
\nsubstantive rights in favour of benamidars and
\ndestroys substantive rights of real owners who are
\nparties to such transaction and for whom new
\nliabilities are created under the Act. Merely because it
\nuses the word “it is declared”, the Act is not a piece of
\ndeclaratory or curative legislation. If one has regard
\nto the substance of the law rather than to its form, it
\nis quite clear, as noted by the Supreme Court in R.
\nRajagopal Reddy, that the Benami Act affects
\nsubstantive rights and cannot be regarded as having a
\nretrospective operation. The Supreme Court in R.
\nRajagopal Reddy also held that since the law nullifies
\nthe defences available to the real owners in
\nrecovering the properties held benami, the law must
\napply irrespective of the time of the benami
\ntransaction and that the expression “shall lie” in
\nSection 4(1) or “shall be allowed” in Section 4(2) are
\nprospective and apply to the present (future stages)
\nas well as future suits, claims and actions only. These
\nobservations clearly hold the field even as regards the
\npresent amendment to the Benami Act. The
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\namendments introduced by the Legislature affect
\nsubstantive rights of the parties and must be applied
\nprospectively.\u201d
\n89. It is also a fact that an SLP instituted against the opinion
\n(supra), has also been declined by the Supreme Court on 28th
\nApril, 2017 in Special Leave to Appeal (C) No. 12328\/2017.
\n90. In the case of Mohar Singh (supra), the Apex Court of the
\nland dealt with the consequences of repeal of the Act. The
\nquestion in the case of Zile Singh (supra), was related to
\ndisqualification from being a member of Municipal Council (if
\nchildren were more than two). Thus, there was no violation of any
\nfundamental right or penal consequence contemplated. Hence, the
\nprinciples cannot be applied to the controversy raised in the
\ninstant batch of writ applications. Similarly, in the case of
\nYogendra Kumar Jaiswal (supra), the observations made by the
\nApex Court of the land while dealing with the issue of confiscation
\nor attachment of money\/property that was acquired illegally and
\nthat too at an interim stage of prosecution.
\n91. In the case of Titaghur Paper Mills Co. Ltd. and Ors.
\n(supra), the matter that fell for consideration of the Supreme
\nCourt, was with regard to ultra vires\/jurisdiction of Sales Tax
\nOfficer and no question of law was involved therein.
\n92. In the case of Gujarat Ambuja Cement Ltd. and Ors.
\n(supra), while dealing with scope and ambit of writ application
\nunder Article 226 of the Constitution of India, the Supreme Court
\nobserved that what is to be ensured before entertaining such an
\napplication is that a strong case is made out and there exists no
\nground to interfere in extra-ordinary jurisdiction. It was further
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\nobserved that where under a statute there is an allegation of
\ninfringement of fundamental right or when on the undisputed facts
\nthe Taxing Authorities are shown to have assumed jurisdiction
\nwhich they do not possess, can be the grounds for entertaining
\nwrit application. To the same effect is opinion of the Supreme
\nCourt in the case of Harbanslal Sahnia and ors.(supra).
\n93. For the reason aforesaid and in the backdrop of the settled
\nlegal proposition so also in view of singular factual matrix of the
\nmatters herein; this Court has no hesitation to hold that the
\nBenami Amendment Act, 2016, amending the Principal Benami
\nAct, 1988, enacted w.e.f. 1st November, 2016, i.e. the date
\ndetermined by the Central Government in its wisdom for its
\nenforcement; cannot have retrospective effect.
\n94. It is made clear that this Court has neither examined nor
\ncommented upon merits of the writ applications but has
\nconsidered only the larger question of retrospective applicability of
\nthe Benami Amendment Act, 2016 amending the original Benami
\nAct of 1988. Thus, the authority concerned would examine each
\ncase on its own merits keeping in view the fact that amended
\nprovisions introduced and the amendments enacted and made
\nenforceable w.e.f. 1st November, 2016; would be prospective and
\nnot retrospective.
\n95. The batch of writ applications stands disposed off, as
\nindicated above.
\n96. A copy of this order be placed in each of the file.
\n(VEERENDR SINGH SIRADHANA) J.
\nBmg\/
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\n(D.B. SAW\/839\/2018 has been filed in this matter. Please refer the same for further orders)
\n(Downloaded on 15\/07\/2019 at 07:47:06 PM)<\/p>\n","protected":false},"excerpt":{"rendered":"
For the reason aforesaid and in the backdrop of the settled legal proposition so also in view of singular factual matrix of the matters herein; this Court has no hesitation to hold that the Benami Amendment Act, 2016, amending the Principal Benami Act, 1988, enacted w.e.f. 1st November, 2016, i.e. the date determined by the Central Government in its wisdom for its enforcement; cannot have retrospective effect<\/p>\n