Prohibition of Benami Property Act is still in Force, not Replaced: Chhattisgarh HC [Read Judgment]

Benami Property Act - Chhatisgarh High Court - Original Act - Taxscan

In a recent case, the Chhattisgarh High Court has held that the original Act of 1988 has not been either superseded or replaced by Amendment Act of 2016. The original Act of 1988 is still in operation and also in force, applies irrespective of the period of purchase of the Benami property.

The facts of the case are the respondents have initiated a proceeding under the Act of 1988 against the petitioners who are husband and wife.  It is alleged that the petitioners are in possession of more than 200 acres of land in different villages.  According to the respondents, all these properties in fact are of one Shri Laxminarayan Agrawal. According to the respondents, the petitioners herein are basically villagers who do not have a sufficient source of income to have such a large chunk of land.  The petitioners could not provide sufficient details in respect of their income on the basis of which they had acquired or purchased these properties. They have not been able to show or recollect the details of the properties that they own in different villages and also not been able to provide the details of the loan that they had taken from different relatives or friends for the purpose of purchase of these properties and therefore the said properties are nothing but Benami properties.

The petitioners submitted in the light of judgments in S.B.C.W. No. 2915/2019 Niharika Jain Vs. Union of India and Mangathai Ammal in Civil Appeal No. 4805/2019, that all the properties which are said to be recorded in the name of the petitioners in fact are all purchased prior to 01.11.2016. On the date when the petitioners had purchased these properties, the provisions of Section 24 of the Act of 1988 were not in existence.  So the proceeding drew under Section 24 subsequent to its enactment w.e.f. 01.11.2016 could not be attracted upon the petitioners. The applicability of Section 24 of the Act of 1988 would not have a retrospective effect therefore, the issuance of the order and the proceedings against the petitioner are illegal and bad in law.

The respondents submitted that the original Act of 1988 has not been either superseded or replaced a new provision of law. The original Act of 1988 is still in operation and also in force and by way of Amendment Act of 2016, certain additional provisions have been incorporated in respect of the procedures to be adopted and also in respect of making the provisions more stringent and deterrent. Therefore, the proceedings initiated by the respondents cannot be said to be without the force of law or beyond the purview of the Act of 1988.

The single bench Justice P. Sam Koshy held that it can not be said that provisions of the Amended Act of 2016 could not have been made applicable in respect of properties that were acquired prior to 01.11.2016. The whole Act of 1988 as it stands today inclusive of the amended provisions brought into force from 01.11.2016 onwards applies irrespective of the period of purchase of the alleged Benami property. Amended Act of 2016 does not have an existence by itself. Without the provisions of the Act of 1988, the amended provisions of 2016 has no relevance and the amended Provisions are only laying down the proceedings to be adopted in a proceeding drawn under the Act of 1988 and the penalties to be imposed in each of the cases taking into consideration the period of purchase of Benami property. The writ petition stands rejected.

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