2020 (1) TMI 382 - HC - Benami Property

Benami Property - Denial of natural justice - Provisional attachment of the immovable property under the provisions of The Prohibition of Benami Property Transactions Act - main contention of the petitioner is that the impugned order has been passed without giving any opportunity of hearing, without issuance of the show cause notice, without complying with the mandatory provisions of Section 24 of the PBPT Act - HELD THAT - Department had initiated a show cause notice on 02.12.2019 under Section 24(1) calling upon the explanation from the petitioner who has been held to be the beneficial owner and respondent No.5 as a Benamidar. The show cause notice was seeking for explanation as to why the property should not be treated as benami property and why the respondent No.5 should not be treated as benamidar so also as to why the present petitioner be not held the beneficial owner. Plain reading of the content of the notice dated 02.12.2019 as also the order impugned dated 04.12.2019, it clearly reflects that the final adjudication is yet to be concluded and for which the petitioner has been called upon and it is only as an interim measure that the provisional attachment has been made and same has been done too with a purpose that the property does not to get further sold and it remains intact. What has also to be appreciated is that the provisional attachment is only an arrangement done to preserve the property until the authority completes the proceedings under the Act. What cannot be lost sight is the fact that the petitioner as well as the respondent No.5 also can appear before the authorities and can put forward their defence and establish the fact that the property cannot be termed as a benami property. What also is revealed from the proceedings drawn is that the petitioner has been held to be the beneficial owner of the property and which if he is not he only has to deny the contentions and leave it for the authorities to decide the matter on merits as he is not going to loose anything. On the contrary, if he claims to be the beneficial owner then the prohibition of the department becomes relevant rather it would make the case of the department stronger of the property being a benami property in the name of respondent No.5. This Court does not find any strong case made out by the petitioner calling for an interference with the impugned order.

Summary

Issues:
Challenge to provisional attachment order under The Prohibition of Benami Property Transactions Act, 1988.

Analysis:
1. The petitioner filed a writ petition challenging the provisional attachment of immovable property under the PBPT Act. The property in question was allegedly purchased by the petitioner as benami property in the name of another individual. The petitioner contended that the order of provisional attachment was passed without giving an opportunity for a hearing, without issuing a show cause notice, and without proper approval from the relevant authority. The petitioner argued that the impugned order was arbitrary, illegal, and violated the mandatory provisions of the PBPT Act.

2. The department, represented by the standing counsel, opposed the petition, stating that the petitioner's claims were premature, misconceived, and lacked sufficient reasons for rejection. The counsel argued that the actions taken were in accordance with the law, with no violations. It was contended that there was no requirement for a show cause notice before the provisional attachment order, as the approval from the appropriate authority had been obtained. The department maintained that the provisional attachment was necessary to prevent alienation of the property during the proceedings.

3. Upon hearing both sides and reviewing the records, the court found that a show cause notice had been issued to the petitioner under Section 24(1) of the PBPT Act, seeking explanations regarding the property's ownership status. The court noted that the provisional attachment order was an interim measure to prevent alienation until the final adjudication. The court observed that the order had statutory backing under Section 24(3) of the Act and was intended to maintain the status quo until the dispute was resolved.

4. The court emphasized that the provisional attachment was a temporary arrangement to preserve the property while the authorities completed the proceedings under the Act. It highlighted that both the petitioner and the other party could present their defenses before the authorities to establish the property's ownership status. The court concluded that the petitioner failed to make a strong case for interference with the impugned order, leading to the dismissal of the writ petition.