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TMI Blog2021 (4) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... ng these writ applications under Article 226 of the Constitution of India, the writ petitioners have assailed a set of show cause notices issued under sub-section (3) of Section 24 of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the '1988' Act). 2. Shorn of unnecessary details, the petitioners contend that the impugned show cause notices have been issued under the 1988 Act. The said impugned notices under the 1988 Act, as per the contention of the petitioners, do not record any reasons as mandated by law. 3. The fundamental point of contention, as advanced by Mr. Khaitan, learned Senior Advocate, appearing on behalf of the petitioners, is the unconscionable and illegal 'retrospective applicability' of the 1988 Act, leading to these proceedings. 4. As per the arguments advanced by Mr. Khaitan, the impugned proceedings could not have been initiated under the said 1988 Act as the amendment Act of 2016 to the said 1988 Act had come into force on November 1, 2016 and the immovable property, which has been designated as a benami property under the 1988 Act was purchased much prior to the coming into force of the said amendment Act on November 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied) 8. I had accordingly requested Mr. Khaitan to place before me pertinent precedents elucidating the legally permissible procedure to be followed by me, when it came to the binding nature of the dictum rendered by the Division Bench in M/s. Ganpati Dealcom Pvt. Ltd (supra) and the resultant effect of the order of stay dated February 3, 2020, imposed by the Supreme Court on the same, in the SLP (C) No. 2784/2020. 9. Subsequent to my request, Mr. Khaitan placed his reliance on the following precedents: i. Pijush Kanti Chowdhury v. State of West Bengal reported in (2007) 3 CHN 178, ii. Niranjan Chatterjee v. State of West Bengal reported in 2007 SCC Online Cal 283, iii. Viswapriya (India) Limited v. Government of Tamil Nadu reported in (2015) 4 LW 33, and iv. Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras, (1992) 3 SCC 1. 10. Dealing with Shree Chamundi Mopeds Ltd. (supra), first, the Hon'ble Supreme Court had explained the difference between an order of stay of operation of an impugned order and the quashment of an impugned order, in the following words: "10. ..[W]hile considering the effect of an interim order staying the operation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned." 12. The same Division Bench comprising Bhaskar Bhattacharya and Kishore Kumar Prasad, JJ. which had laid down the law in Pijush Kanti Chowdhury (supra) reiterated the same view in Niranjan Chatterjee (supra). This case-law, therefore, does not require further elaboration. 13. The Madras High Court did have an occasion to consider the judgment rendered in Pijush Kanti Chowdhury (supra) in Viswapriya (India) Limited (supra). It had also noted the Supreme Court's observation recorded in Shree Chamundi Mopeds Ltd. (supra) as well and had in its considered opinion chosen to follow the same, in contradistinction to the judgment of the Delhi High Court (discussed below) which had differed with the law laid down in Pijush Kanti Chowdhury (supra). 14. The Delhi High Court in Alka Gupta v. Medical Council of India, reported in (2014) 5 HCC (Del) 386, had upon considering Pijush Kanti Chowdhury (supra) ruled the following: "This Court with utmost humility would like to state that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral law, then, of course, procedure applicable as on the date of hearing may be relevant. If, on the other hand, it is a matter of substantive rights, then prima facie it will only have a prospective application unless the amended law speaks in a language "which expressly or by clear intention, takes in even pending matters". Short of such intendment, the law shall be applied prospectively and not retrospectively. 8. As held by the Supreme Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan4, Section 4 of the Benami Act, or for that matter, the Benami Act as a whole, creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created under the Act. Merely because it uses the word "it is declared", the Act is not a piece of declaratory or curative legislation. If one has regard to the substance of the law rather than to its form, it is quite clear, as noted by the Supreme Court in R. Rajagopal Reddy, that the Benami Act affects substantive rights and cannot be regarded as having a retrospective operation. The Supreme Court in R. Rajagopal Reddy also held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988. Thus, the authority concerned would examine each case on its own merits keeping in view the fact that amended provisions introduced and the amendments enacted and made enforceable w.e.f.1st November 2016; would be prospective and not retrospective." 21. The order of the learned Single Judge was subsequently appealed before the Division Bench in a cluster of intra-court writ appeals. These appeals, along with the intra-court writ appeal of Niharika Jain bearing D.B. Special Appeal Writ No. 1328/2019, were admitted by the Division Bench comprising Indrajit Mahanty, C.J. and Inderjeet Singh, J. by an order dated December 17, 2019 and was last heard on January 28, 2020. The records available on the e-courts server showcases that no further hearings have taken place since then and the appeals remain pending, awaiting the Division Bench's consideration. And therefore, the order of the learned Single Judge still stands on both limbs. 22. Thus, in my considered opinion, deciding the relevance of the applicability of the ratio of the decisions rendered in Joseph Isharat (supra), and Niharika Jain (supra) by the Bombay High Court and Rajasthan High Court respectively, on this Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent Benches of the same court may be summed up as follows: (i) A single judge of a High Court is bound by the decision of another single judge or a Division Bench of the same High Court. It would be judicial impropriety to ignore that decision. Judicial comity demands that a binding decision to which his attention had been drawn should neither be ignored nor overlooked. If he does not find himself in agreement with the same, the proper procedure is to refer the binding decision and direct the papers to be placed before the Chief Justice to enable him to constitute a larger Bench to examine the question (see Food Corporation of India v. Yadav Engineer and Contractor, (1982) 2 SCC 499 : AIR 1982 SC 1302). (ii) A Division Bench of a High Court should follow the decision of another Division Bench of equal strength or a Full Bench of the same High Court. If one Division Bench differs from another Division Bench of the same High Court, it should refer the case to a larger Bench. (iii) Where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred if reached after full consideration of the earlier decisions. (d) The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the position as it stood on the date the impugned order was passed, with the impugned order ceasing to exist in the eyes of the law. ii. Quashment of such impugned order would revive the appeal before the appellate authority and would be considered pending before such appellate authority, awaiting the appellate authority's fresh consideration. iii. As per the law laid down in Pijush Kanti Chowdhury (supra) and reiterated in Niranjan Chatterjee (supra) by the Division Bench of this Court, in cases where an appeal remains pending before the Supreme Court and an order of stay remains operative in such a pending appeal, such stay of order does not amount to any 'declaration of law' under Article 141 of the Constitution of India but is merely binding upon the parties to the said proceedings. iv. Such an order of stay, which is interim in nature, does not obliterate the binding effect of the judgment of the concerned High Court as a precedent for the reason that while granting the interim order of stay of such order of the High Court, the Supreme Court had no opportunity to lay down any proposition of law which was in variance to the one declared by the High Court, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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