2018 (2) TMI 60 - HC - Benami Property

Benami Transactions - Proposed parties proper and necessary parties to the Writ Petitions - Held that - The reason, which makes it necessary to make a person, a party to an action, so that he should be bound by the result of the action and question to be settled. Thus, the test would be whether the said party is a necessary or proper party and presence of such party before the Court is necessary for complete and effective adjudication of the subject matter. Further, proper party has been explained is a person, whose presence is considered appropriate for effective decision of the case, though no relief may have been claimed by him. A party can be impleaded, if he has a direct interest and a legal interest in the subject matter. In a Writ Petition against the Government, if allegations are made against private parties or the officials, they should be impleaded as respondents. In the cases on hand, the petitioner has made several allegations against the Deputy Commissioner of Income Tax, Corporate Circle (I), Chennai, who was the Initiating Officer of the impugned proceedings and rightly he has been impleaded as the second respondent in his personal capacity. However, the petitioner has not impleaded Mr.RR and Archer, though there are several allegations made against them relating to transactions with the petitioner and connecting them with the second respondent. Therefore, it is of the considered view that the impleading parties are proper parties, whose presence is necessary for a complete and final decision of the question involved in these proceedings. Second respondent's jurisdiction to issue the impugned notice, prohibitory order and impugned attachment order - Held that - The applicability of the defacto doctrine cannot be made to the present proceedings in an abstract manner, but has to be done bearing in mind the provisions of the Benami Act and in particular Section 24, Section 59 read with Section 2(19) and the notification dated 18.05.2017. If it is done, then the second respondent is not a person, who is the holder of the office, the Deputy Commissioner of Income Tax (Bename Prohibition), Chennai and for the purposes of the Benami Act, he could be termed as an usurper or total stranger to the office though not as a Deputy Commissioner of Income Tax, Central Circle (I). Thus, when a person, who has no authority to initiate proceedings under the Benami Act or issue orders of attachment under the Benami Act, does so, the very foundation on which he has done such act collapses and the proceedings have to be held to be wholly without jurisdiction. Thus, for the above reasons, it is held that the second respondent lacked inherent jurisdiction to initiate proceedings as on 19.05.2017 and the impugned notice, the impugned prohibitory order and the order of attachment are held to be without jurisdiction and consequently are liable to be set aside. In the above, question No.(ii) is answered in favour of the petitioner.

Summary

Issues Involved:
1. Impleadment of proposed parties.
2. Jurisdiction of the second respondent to issue the impugned orders.
3. Retrospective application of the Benami Transactions (Prohibition) Amendment Act, 2016.
4. Allegations of malafide action by the second respondent.

Issue-wise Detailed Analysis:

1. Impleadment of Proposed Parties:
The proposed parties, Mr. RR and Archer, sought to be impleaded as respondents in the writ petitions. The court noted that the impugned proceedings resulted from a complaint lodged by Mr. RR, and the petitioner had made several allegations against Mr. RR and Archer, linking them with the second respondent. The court concluded that the proposed parties were proper parties necessary for a complete and final decision of the questions involved. Therefore, the impleadment petitions were allowed, making Mr. RR and Archer respondents 7 and 8 in the writ petitions.

2. Jurisdiction of the Second Respondent:
The petitioner argued that the notification dated 18.05.2017, published in the Gazette of India, came into force on the said date, and only the specified authorities could exercise jurisdiction under the Benami Act. The second respondent, being the Deputy Commissioner of Income Tax, Corporate Circle (I), was not the designated Initiating Officer under the notification. The court examined the legal position and concluded that the notification dated 18.05.2017, having been e-published on 18.05.2017, took effect from that date. Therefore, the second respondent lacked inherent jurisdiction to initiate proceedings on 19.05.2017, making the impugned notice, prohibitory order, and attachment order without jurisdiction and liable to be set aside.

3. Retrospective Application of the Benami Transactions (Prohibition) Amendment Act, 2016:
The court did not delve into the issue of the retrospective application of the Amendment Act, as the foundation of the second respondent's jurisdiction had already collapsed, rendering the proceedings void.

4. Allegations of Malafide Action by the Second Respondent:
The court did not address the allegations of malafide action by the second respondent, as the proceedings were already held to be void due to the lack of jurisdiction.

Conclusion:
The writ petitions were allowed, and the impugned orders/proceedings were quashed. No costs were imposed, and the connected miscellaneous petitions were closed.