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2024 (4) TMI 541 - BOMBAY HIGH COURTAuthority under the Customs Act to proceed against the property of a third party - Prohibition of Benami Property Transactions - petition under Article 226 of the Constitution assails a communication issued by respondent No. 2/Deputy Commissioner of Customs (Preventive), M&P Wing, Mumbai, to the Secretary, Pushpa Niketan Co-op. Housing Society informing the society not to permit the petitioner to transfer the flat owned by her without prior ‘No Objection’ (NOC) from the office of respondent No. 2. as respondent No. 2 had initiated certain investigation against the petitioner’s husband Whether respondent No. 2 would have any authority under the Customs Act to proceed against the property of a third party namely of the wife of a person who is being investigated? Whether de hors the Customs Act, there is any provision in law permitting respondent No. 2 to issue such communication? HELD THAT:- Both the questions are required to be answered in the negative. We have not been pointed out any provision which can be resorted by the Customs officials to attach the property of a third party like the petitioner who cannot be connected to any recovery under the Customs Act, much less to issue the impugned communication. Even the provisions of Section 142 of the Customs Act which provides for recovery of sum due to Government could not have been resorted by respondent No. 2 to issue the impugned communication. Thus, respondent No. 2 has acted in patent lack of jurisdiction. Even assuming that a statement is stated to be made by the petitioner's husband in relation to the flat in question being purchased by him or actually being his property and ostensibly owned by the petitioner, however, considering the clear provision of Section 3 of the Prohibition of Benami Property Transactions Act, 1988, respondent No. 2 cannot have any jurisdiction to question the petitioner’s ownership of the flat. The only person who can question the petitioner’s ownership, would be the husband of the petitioner. Thus, in issuing communication of the nature as impugned, the respondent had, in fact, taken upon himself an obligation of concluding that the flat belongs to the husband of the petitioner, when in law such declaration can only be granted by a Civil Court. For such reason, even otherwise, respondent No. 2 would not have any jurisdiction to issue the impugned communication. As respondent No. 2 did not wield any authority to issue the impugned communication. It was issued in patent lack of jurisdiction. The petition, accordingly, needs to succeed.
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