9911796707
TMI Blog2019 (12) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the order of provisional attachment dated 31.07.2019 Annexure P-1. 2. The core issue raised by the petitioners in the present writ petition is "whether the provisions of the Act of 1988 providing for confiscation of properties found to be 'Benami' could be applied in respect of the transactions carried out prior to 01.11.2016". 3. The brief facts which led to the filing of the present writ petition are that the respondents have initiated a proceeding under the Act of 1988 against the petitioners who are husband and wife. It is alleged that the petitioners are in possession of more than 200 acres of land in Tahsil Pithora in villages Patewa, Jhalap, Lahrod, Barekel and in village Baya (Kasdol) and also in village Sankara, Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Since on the date of purchase of the properties the law under Section 24 of the Act of 1988 was not in force, the proceeding drawn under Section 24 subsequent to its enactment w.e.f. 01.11.2016 could not be attracted upon the petitioners. 5. The contention of the petitioners is that the applicability of Section 24 of the Act of 1988 would not have a retrospective effect and it would only be prospective w.e.f. 01.11.2016 onwards, therefore, the issuance of the order Annexure P-1 and the proceeding drawn vide Annexure P-2, both are per se illegal and bad in law. 6. The petitioners also contended that most of the properties cited in the notice in fact are not owned by the petitioners but are owned by someone else and therefore also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law or beyond purview of the Act of 1988. 8. It was also the contention of the respondents that the present writ petition in its present form is premature insofar as it is only at notice stage and whatever contentions that the petitioners indent to raise so far as the applicability of the Act of 1988 is concerned, it can still be raised by the petitioners before the authorities concerned and thereafter the provision of law itself has a remedy of appeal before whom also the petitioners can raise all these grounds and therefore the writ petition deserves to be rejected. 9. Having heard the contentions put forth on either side and on perusal of record, the undisputed fact of the present writ petition is that whatever properties that are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perseded in any manner. The Act of 1988 is in operation with full force. The Parliament in its wisdom did not find the original Act of 1988 to be effective enough to control the menace of Benami properties being acquired in the country. The Parliament found certain discrepancies and loopholes and also did not find the original Act to be stringent and deterrent enough to achieve the object behind the enactment of the Act of 1988. With an intention to make the Act or the law more effective, forceful and stringent, certain new amendments were made making the law stringent and also prescribing the procedure and the manner in which the proceedings were to be drawn while initiating proceeding to attach and confiscate the Benami properties. 13. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only those properties or Benami Transactions made on or after the commencement of the Amendment Act, 2016 i.e. 01.11.2016. This again leads us to draw a safe inference that the proceedings under the Act of 1988 could very well be initiated against a person who has entered into a Benami transaction irrespective of the date when the amendment act came into force. 17. So far as Chapter IV particularly Section 24 is concerned, the same is only a procedural law or procedural provision inserted in the original Act of 1988 by way of amendment w.e.f. 01.11.2016. Plain reading of the impugned order Annexure P-1 shows that the petitioners have in fact been given a fair and reasonable opportunity of hearing before the same was passed. 18. Reading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case. 20. Moreover, the said judgment has been passed in a Civil Appeal assailing the judgment and decree passed from the Appeal decided by the High Court affirming the judgment of decree passed by the Civil Court in a suit for partition. In addition, the said judgment so far as referring to the provisions of amended Act of 2016 is concerned, was keeping in view the Provisions of unamended Sub sections (2) of Section 3 which stood omitted by the Act of 2016, dealing with the property purchased by a person in the name of his wife or unmarried daughter. Thus, the principles or ratio laid down in the said judgment would not be applicable in the given facts and circumstances of the present case. If we take into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
