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TMI Blog2020 (5) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 31-10-2018 passed in Reference Case No(s). R-134/2017, R-136/2017 & R-137/2017. (ii) Stay order was granted on 15-5-2019 by this tribunal with a direction that no further steps shall be taken on the notice issued by the Initiating Officer. (iii) Through these applications the applicants/appellants sought a direction to refrain the Respondent from issuing any further notice calling upon the applicants to supply any information/document, as there is interim stay dated 15-5-2019. (iv) A notice dated 09-4-2019 issued by the Respondent (Annexure-A) calling upon the applicants to supply certain document and that the applicants have replied to the said notice on 10-5-2019 (Annexure-B). (v) The Respondent has been refrained from taking any steps in pursuance to the notice including seeking further documents. (vi) The applicants have intimated the passing of order dated 15-5-2019 of this Tribunal to the Respondent vide communication dated 4-6-2019 (Annexure-C). (vii) Another notice vide letter dated 01-7-2019 under section 26(3) of PBPT Act, 1988 has been sent by the Respondent calling upon the applicants to submit the details/information (Annexure-D). (viii) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per law cannot be granted. (iii) The directions sought are completely frivolous, not maintainable and is liable to be dismissed. The applications are based upon willful misleading of the order dated 15-5-2019 passed by the Tribunal. The order dated 13-8-2019 passed by this tribunal in the present applications deserves to be vacated. (iv) This Tribunal has not restrained the Respondent from conducting further enquiries and investigations with respect to the Benami properties and proceeds of the Benami Transactions in accordance with law. The Respondent statement was recorded in the said order dated 15-5-2019 that the Respondent will take an action after serving of the notice under section 24(1) of the Act. (v) This Tribunal has not granted any stay on further proceedings which may be initiated against the applicant in accordance with law. 8. The Respondent has sought following relief:- (i) Dismissal of the present applications with cost. (ii) Vacating the order dated 13-8-2019 passed by this Tribunal. (iii) Any other order may deemed fit. 9. The applicants have filed the rejoinders on 13-11-2019 which are mostly repetition of the contents that have been conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: "Fresh appeal has been filed under section 46 of Prohibition of Benami Property Transactions Act, 1988 against the order dated 31st October, 2018. The counsel for the respondent seeks two weeks time to file the reply in the interim application. Let the same be done within two days. Re-notify on 15th May, 2019." In the meanwhile, it is clarified here that no further steps shall be taken on the notice issued by the I.O. However, liberty is granted to the respondent to initiate the proceedings on the basis of fresh reference if registered. However, they may proceed by registering the second reference in accordance with law. Learned counsel for the appellant is pressing for interim order. The learned counsel for the respondent makes the statement on behalf of the respondent in the meanwhile that further enquiries and investigation with respect to Benami Properties and the proceeds of the Benami Transactions if necessary shall be proceeded with in accordance with law and the respondent will take an action after serving the notice under section 24(1) of the act. The order is passed accordingly. List on 23rd July, 2019. Copy of the order be given 'dasti' to both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SG) appearing for the opponent/Respondent sought clarification of the order dated 15-5-2019 read with order dated 13-8-2019. It is the contention of the Learned ASG that the order dated 15-5-2019 read with 13-8-2019 does not affect the operation of the notice dated 19-7-2019. Whereas it is the contention of the Learned counsel for the applicants/appellants that in view of the order passed on 15-5-2019 read with 13-8-2019 the Respondent cannot issue any notice to call for any documents etc. 18. At this stage, a legal question was raised as to whether a single member bench is empowered to pass any order reviewing/modifying/clarifying an order passed by division bench. 19. It is the contention of the Learned ASG that a single member bench of this Tribunal is empowered to hear an appeal filed under the said Act. He has also submitted that a single bench, over and above, following the principle of 'Doctrine of Necessity' a single member bench can hear and decide. He has also pleaded that a single member bench can pass order on pending application. He made me visited to sections 36, 46, 38 and 31 of the said Act. He has also drawn the attention of the tribunal to section 15(P.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-5-2019 the appeals were taken up for hearing on interim stay and a speaking order was passed by the Division Bench consisting of the Hon'ble Chairman & myself. The speaking order has already been made part of this order above vide para no. 13. Since I was part of the Bench I distinctly remember that the learned counsel for the appellants specifically brought our attention to 1st para of paragraph 18.6 of the impugned order which reads as follows:- In view of these definitions of the terms"property" and "benami property" for the purposes of the enforcement of The Act, the Approving Authority and the Initiating Officer are directed to conduct further inquiries in the matter to identify the present form of the benami property which has been the subject matter of the benami transaction and to proceed to attach its proceeds or converted form(s) as per law and to send requisite reference(s) within time as per law for adjudication. 23. It was contended by the learned counsel for the appellants that the Adjudicating Authority is not empowered to give the above direction as it is his beyond jurisdiction. It was further contended by the learned counsel for the appellants that the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts which are referred above. On the other hand, the learned counsel for the appellants contended that this tribunal has no authority to interprete the statute. It is also contended that the orders dated 15-5-2019 and 13-8-2019 were not challenged by the opponent/respondent. He has referred the sections 10, 23 and 31 of PBPT Act, 1988 as amended. It was also contended by him that a Single Member Bench of this Tribunal has no authority under the PBPT Act, 1988 as amended to clarify/modify/review an order passed by Division Bench. He cited different judgments which have already been cited above. 29. To arrive at a conclusion it is necessary to examine various provisions of law as prescribed under the PBPT Act, 1988 as amended. 30. Chapter 5 of the PBPT Act, 1988 deals with provisions pertaining to Appellate Tribunal. The relevant provisions are as under:- Section 30:-Establishment of Appellate Tribunal The Central Government shall, by notification establish an Appellate Tribunal to hear appeals against the orders of the Adjudicating Authority under this Act. Section 31:- Composition, etc., of Appellate Tribunal (1) The Appellate Tribunal shall consist of a Chairperson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal may entertain any appeal after the said period of forty-five days, if it is satisfied that the appellant was prevented, by sufficient cause, from filing the appeal in time. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (4) An Appellate Tribunal while deciding the appeal shall have the power- (a) to determine a case finally, where the evidence on record is sufficient; (b) to take additional evidence or to require any evidence to be taken by the Adjudicating Authority, where the Adjudicating Authority has refused to admit evidence, which ought to have been admitted; (c) to require any document to be produced or any witness to be examined for the purposes of proceeding before it; (d) to frame issues which appear to the Appellate Tribunal essential for adjudication of the case and refer them to the Adjudicating Authority for determination; (e) to pass final order and affirm, vary or reverse an order of adjudication passed by the Adjudicating Authority and pass such other order or orders as may be necessary to meet the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46 of the said Act. Further this Appellate Tribunal is empowered under section 46(e) of the said Act to pass final order and affirm, vary or reverse an order of adjudication passed by the Adjudicating Authority and pass such other order or orders as may be necessary to meet the ends of justice. Section 36 of the said Act has taken care of the situation where there are vacancies, for various reasons, in the Appellate Tribunal. The statue provide that no Act or proceedings of the Appellate Tribunal shall be invalid merely by a reason of (a) any vacancy in or any defect in the constitution of the Tribunal; or (b) any defect in the appointment of a person Acting as a Member of the Tribunal; or (c) any irregularity in the procedure of the Tribunal not effecting the merits of the case. So in view of the aforesaid provisions the proceedings before the Single Bench is not invalid/illegal. 33. Section 71 is the provision which takes care of the situation until the Adjudicating Authorities are appointed and the Appellate Tribunal under the said Act is established. It provides that until the Appellate Tribunal is established, the Appellate Tribunal established under section 25 of the Money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ends of justice. Section 40(2)(f) has empowered the Appellate Tribunal to review its decisions. The vacancies in this Appellate Tribunal will not come in the way to invalidate proceedings of this Tribunal in respect of appeals filed under the said Act. The legislative intention of providing Section 36 is to mitigate such circumstances. 38. Besides above there is a doctrine called "Doctrine of Necessity". The situations in the present appeals are such that the doctrine of necessity has to be applied alternatively. The judgments cited by the learned ASG are best suited to the present situations. 39. In the present case if we read the orders dated 15-5-2019 and 13-8-2019 together it can be deduced and clarified that the stay order was passed with respect to extra jurisdictional direction given by the Adjudicating Authority in Para no. 18.6 of the impugned order. The order dated 15-5-2019 is crystal clear that the said order is with respect to notice issued by the Initiating Officer (I.O). By the time the order dated 15-5-2019 was passed, the notice dated 09-4-2019 was only issued wherein there was reference to the order of Adjudicating Authority. Therefore, it is clarified that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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