Someshwar Darshan Cooperative ... vs Union Of India
2022 Latest Caselaw 7635 Guj

Citation : 2022 Latest Caselaw 7635 Guj
Judgement Date : 7 September, 2022

Gujarat High Court

Someshwar Darshan Cooperative ... vs Union Of India on 7 September, 2022

Bench: Ashutosh J. Shastri

     C/SCA/12487/2021                       ORDER DATED: 07/09/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 12487 of 2021

==================================================
 SOMESHWAR DARSHAN COOPERATIVE HOUSING SOCIETY LIMITED
                      VIBHAG 10
                        Versus
                    UNION OF INDIA
==================================================
Appearance:
MR S.N. SOPARKAR, SENIOR ADVOCATE WITH
MS NUPUR D SHAH(10233) for the Petitioner(s) No. 1
MR M.R. BHATT, SENIOR ADVOCATE FOR M R BHATT & CO.(5953) for
the Respondent(s) No. 2
MR DEVANG VYAS, ADDITIONAL SOLICITOR GENERAL OF INDIA for the
Respondent(s) No. 1
==================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                        Date : 07/09/2022
                          ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. We have heard Mr. S.N. Soparkar, learned Senior

Advocate appearing on behalf of Ms. Nupur D. Shah for the

petitioner, Mr. M.R. Bhatt, learned Senior Advocate appearing

for respondent No.2 namely the Initiating Officer as defined

under Section 2(19) read with Sections 18(1), 24 of the

Prohibition of Benami Property Transactions Act, 1988 (for

short 'the Act') and Mr. Devang Vyas, learned Additional

C/SCA/12487/2021 ORDER DATED: 07/09/2022

Solicitor General of India appearing for respondent No.1 viz.,

Union of India and Adjudicating Authority as defined under

Section 2(1) read with Sections 18(1)(d) and 24(3) of the Act.

Perused the records.

2. Petitioner has prayed for quashing of the attachment order

passed under Section 24(3) of the Benami Transactions

(Prohibition) Amendment Act, 2016 and the all consequential

proceedings initiated pursuant thereto.

3. In this petition, essentially petitioner is seeking for writ of

certiorari to declare the provisions of Benami Transactions

(Prohibition) Amendment Act, 2016 being prospective and

consequently the notices issued to the petitioner and quashing

of the orders passed pursuant to the same.

4. Having heard the learned advocates appearing for the

parties, we are of the considered view that aforesaid issue is no

more res integra in view of the judgment of the Hon'ble Apex

Court rendered in Civil Appeal No.5783 of 2022 dated

23.8.2022 whereunder Hon'ble Apex Court after considering the

contentions raised thereunder as well as relevant provisions of

C/SCA/12487/2021 ORDER DATED: 07/09/2022

the Act pressed into service, has arrived at the following

conclusion:

"18.1 In view of the above discussion, we hold as under:

a) Section 3(2) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution.

b) In rem forfeiture provision under Section 5 of the unamended Act of 1988, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary.

c) The 2016 Amendment Act was not merely procedural, rather, prescribed substantive provisions.

d) In rem forfeiture provision under Section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retroactively.

e) Concerned authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior

C/SCA/12487/2021 ORDER DATED: 07/09/2022

to the coming into force of the 2016 Act, viz., 25.10.2016. As a consequence of the above declaration, all such prosecutions or confiscation proceedings shall stand quashed.

f) As this Court is not concerned with the constitutionality of such independent forfeiture proceedings contemplated under the 2016 Amendment Act on the other grounds, the aforesaid questions are left open to be adjudicated in appropriate proceedings."

5. As could be seen from the aforesaid judgment, it has been

clearly held by the Hon'ble Apex Court that authorities cannot

initiate or continue criminal prosecution or confiscation

proceedings for transactions entered into prior to the coming

into force of the 2016 Act, viz., 25.10.2016 and as a

consequence thereof, all such prosecutions and confiscation

proceedings which had been initiated came to be quashed.

6. In that view of the matter, we are of the considered view

prosecution and initiation of proceedings in the instant case

being pursuant to the Amendment Act the declaration made by

the Hon'ble Apex Court in paragraph 18(e) would squarely be

C/SCA/12487/2021 ORDER DATED: 07/09/2022