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TMI Blog2024 (4) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... for short 'the Society') informing the society not to permit the petitioner to transfer the flat No. 406-B owned by her without prior 'No Objection' (NOC) from the office of respondent No. 2. The reason being that respondent No. 2 had initiated certain investigation against the petitioner's husband Shri. Anil B. Chokhara. It is also the case of the petitioner that a copy of the said communication was never forwarded to the petitioner and that the petitioner came to know of the same recently from the society. Accordingly, the petitioner approached this Court in the present proceedings, praying for the following substantive reliefs:- "(a) Issue appropriate writ or order in the nature of Qua Warranto thereby directing the 2nd Respondent to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charging loan installments in respect of the said flat from her income. It is his contention that such action on the part of respondent No. 2 would also be hit by Section 3 of the Prohibition of Benami Property Transactions Act, 1988. He has supported such contention by placing reliance on the decision of the Division Bench of the Kerala High Court in the case Dy. Commissioner of Cus. (Preventive), Kozhikode Vs. Ayesha. A.V. 2014 (300) E.L.T. 167 (Ker.). 3. On the other hand, Mr. Mishra, learned Counsel for the respondents in support of the impugned communication, would submit that there were investigations against the petitioner's husband during the course of which, his statements were recorded under Section 108 of the Customs Act, wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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. 7. This apart, there is another aspect of the matter which, in our opinion, would go to the root of the matter. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the wife and children of the defaulter were entitled to be proceeded against and whether the properties standing in their name could be applied to the satisfaction of such dues of the defaulter on the premise that the same were in fact purchased by the defaulter and that the purchase was in favour of the defaulter's dependents. The Court considering the provisions of Section 142 of the Customs Act, 1962 as also the provisions of Section 3 of the Benami Act repelled the revenue's contention. It was observed that the Department may have power or authority to adjudicate on the legal rights of the husband-defaulter, however, it could not question the ownership of the wife, deeming it to be ostensible ownership, and considering the real owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of this Court in Sunitha v. Ramesh [2010 (3) KLT 501] and the decision of the Supreme Court in Marcel Martins (supra) to advance the said proposition. 14. The principle stated in the said decision cannot clothe the Department with any power or authority or a legal right to step into the shoes of the husband/defaulter; as has been stated above. The transaction between the husband and wife cannot, going by the declaration of law in the decisions cited above, be ever termed as a benami transaction, since the Benami Act itself saves such transaction entered into for the benefit of the wife, even if the consideration is paid by the husband. ....... 15. .......... If any person is holding property other than the defaulter and on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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