TMI Blog2018 (8) TMI 2101X X X X Extracts X X X X X X X X Extracts X X X X ..... vided under Sub-section (1) of Section 26 of the Act. Section 26(3) makes it clear that the adjudicating authority will examine the entire issue and relevant material. It the right to cross-examine cannot be considered to be an integral part of the principle of natural justice, however, it is open for the authority to examine the available circumstances and if deems fit, the opportunity to cross-examine can be provided, but not as a matter of right. Thus, considering the overall circumstances without expressing any opinion whether the respondents have to provide an opportunity of cross-examination or to supply the certified copies of the documents requested by the petitioners, an order has to be passed by the authority assigning reason on the pending applications filed by the petitioners as to why such applications cannot be accepted. It is not proper on the part of the respondents not answering the applications submitted by the petitioners and sitting silent over the applications demanding documents and asking opportunity for cross-examination is itself arbitrary and in violation to the principle of natural justice. This petition is disposed of directing the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay also be provided an opportunity to cross-examine the persons on whose allegations the petitioners have been said to be Benamidar. 3. The petitioners have contended that as per Section 11 of PBPT Act, 1988, the Adjudicating Authority is under obligation to follow the principle of natural justice in the proceeding initiated before him and on that strength, the petitioners have a right to ask for possession of the documents on which the respondents are relying upon and to have an opportunity for cross-examining the persons who made allegations against them inasmuch as it is an integral part of the principle of natural justice and is a mandatory requirement. Learned counsel for the petitioners submits that as per Section 19, respondent No.2 is an authority acting like a Civil Court and therefore the petitioners are having right to call for certified copies of the documents and also to cross-examine the persons who made allegations against them. 4. Per contra, Shri Lal, learned counsel appearing for respondent No.3 filed a reply and submitted that that maximum documents have been supplied to the petitioners alongwith the show cause notice dated 31.08.2017 issued under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r applications following the minimum requirement of principle of natural justice for providing them requested documents and also to afford an opportunity of cross-examination. 5. As per the confined arguments advanced by the parties, the only question which arises for consideration is whether the respondents, at this stage, are under obligation to supply the certified copies of the requisite documents and to afford an opportunity for cross-examining the persons who have made allegations against the petitioners. 6. As per the arguments of the learned counsel for the petitioners, who relied upon Section 11 of the PBPT, Act 1988, the Adjudicating Authority has to follow the principle of natural justice and as such he is under obligation to supply the certified copies of all the documents relied upon by him and also to provide an opportunity of cross-examination. For the purpose of convenience, Section 11 is reproduced hereinbelow; 11. Power of Adjudicating Authority to regulate its own procedure;- The Adjudicating Authority shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010(3) AllLJ 649 (Smt. Java Kalia vs. Smt. Manju Agrawal and another) and 1977 (2) ILR (Kerala) 322 (M.K. Thomas vs. State of Kerala). 10. In case of Bakshi Ghulam Mohammad (supra), the Supreme Court has dealt with the issue as to in what manner the principle of natural justice has to be followed in respect of the proceeding initiated by the Government against a person with his friends and relatives who has misused his official position. Here in this case also there are allegations against the Government Officers who have used their post with the help of their friends and relatives while entering into several Benami transactions. The Supreme Court has observed as follows;- 19. It remains now to deal with the last point. This was directed against the proceedings of the Commission. It was said that the proceedings had been conducted in a manner contrary to the rules of natural justice and to statutory provisions. Two specific complaints were made. The first was that the Commission had not allowed Bakshi Ghulam Mohammad to inspect all the documents before he was called upon to answer the allegations made against him. The second was that the Commission had refused him per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there all that was said was that when evidence is given viva voce against a person be must have the opportunity to hear it and to put the witnesses questions in cross-examination. That is not our case. Furthermore, in Meenglas Tea Estate case the Court was not dealing with a fact finding body as we are. Rules of natural justice require that a party against whom an allegation is being inquired into should be given a hearing. Bakshi Ghulam Mohammad was certainly given that. It was said that the right to the hearing included a right to cross-examine. We are unable to agree that that is so. The right must depend upon the circumstances of each case and must also depend on the statute under which the allegations are being inquired into. This Court has held in Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, that the rules of natural justice vary with the varying constitution of statutory bodies and the rules prescribed by the Act under which they function; and the question whether or not any rules of natural justice had been contravended, should be decided not under any preconceived notions, but in the light of the statutory rules and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission therefore to order a fact to be proved by affidavit are subject to the proviso that that power cannot be exercised when a party desires the production of the persons swearing the affidavits for cross-examining them. 25. The contention was accepted by the High Court. We take a different view of the matter. We first observe that the inquiry before the Commission is a fact-finding inquiry. Then we note that s. 10 which, in our opinion, applies to a person whose conduct comes up for inquiry by the Commission directly, has a right to cross-examine only those persons who give viva voce evidence before the Commission against him. If s. 4(c) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry, then s. 10(2) would become superfluous. An interpretation producing such a result cannot be right. It also seems to us that O. 19 r. 1 has to be read with O. 18 r. 4 which states that the evidence of the witnesses in attendance shall be taken orally in open court. It would appear, therefore, that O. 19 r. 1 is intended as a sort of exception to the provisions contained in O. 18 r. 4. The Act contains no provision similar to O. 18 r. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one should be at any special disadvantage. We have also to remember that s. 9 of the Act gives the Commission power to regulate its own procedure subject to any rules made under the Act. We find that the rules provide that evidence may be given by affidavits and the Commission may after reading it, if it finds it necessary to do so, record the evidence of the deponents of the affidavits and also of others; see Rules 6, 7 and 8. Rule 10 reproduces the restricted right of cross-examination given by s. 10. Rule 11 says that in all matters not provided by the rules, the Commission may decide its own procedure. One of the matters covered by the rules in cross-examination of witnesses. So the rules contemplate cross-examination as a matter of procedure and the Commission is free to decide what cross-examination it will allow provided that in doing so it cannot go behind the rules relating to cross-examination. Section 9 of the Act has to be read in the light of these rules. All this, we think, supports the interpretation we have put on s.4(c). We also feel that the procedure before a body like the Commission has necessarily to be flexible. We, therefore, reject the last contention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice in assessment proceedings If, as noticed in the decisions referred to, the assessing authority is not bound to disclose the source of its information and it is enough to draw the assessee's attention to the material collected, the assessee's right of cross-examination seems to rest on rather slender foundation. 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the showcause notice issued on August 21, 1961, all the material on which the customs authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to crossexamine them. In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be crossexamined by them on the statements made before the customs authorities. Accordingly we hold that there is no force in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of the property, and, thereafter, pass an order- (i) holding the property not to be a benami property and revoking the attachment order; or (ii) holding the property to be a benami property and confirming the attachment order, in all other cases. A plain reading of Sub-section (3) makes it clear that the adjudicating authority is obliged to examine the stand of alleged Benamindar in reply to the show cause notice. He is further obliged to make further inquiry or take into account further report or evidence which he deems fit for deciding the question. He can take into account all relevant documents. After providing due opportunity of hearing to alleged Benamindar, he may pass the order to declare the property as Benami Property and confirm the attachment order or he may hold that the property cannot be treated as Benami Property. In that case, he may revoke the attachment order. Pertinently, as per Sub-section (6) of Section 26, the adjudicating authority may at any stage of proceeding, either on the application of any party or suo moto strike out the name of any property improperly joined or add the name of any person whose presence before the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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