Madras High Court
M/S.Sadhana Villas Pvt Ltd vs The Adjudicating Authority on 7 February, 2022
W.P.No.1698 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.02.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition No.1698 of 2022
and W.M.P.No.1842 of 2022
M/s.Sadhana Villas Pvt Ltd.,
Represented by its Authorised Signatory
Mr.Padmanabhan S.having registered office at
1st Floor, Sai Subhodhaya Apartments, No.57/2B
East Coast Road, Thiruvanmiyur, Chennai 600 041. …. Petitioner
-Vs-
1.The Adjudicating Authority
Under The Prohibition of Benami Property
Transactions Act, 1988, Room No.26,
4th Floor, Jeevan Deep Building,
Parliament Street, New Delhi.
2.Deputy Commissioner of Income Tax
(Benami Prohibition), Room No.104,
1st Floor, Income Tax Investigation Wing
Building, 108, M.G.Road, Nungambakkam
Chennai 600 034. …. Respondents
Prayer : Writ Petition under Article 226 of the Constitution of India praying for the
issuance of a Writ of Certiorari calling for the records on the file of the 1 st respondent
in Ref.No.R-1026/2018 and quash the impugned order dated 28.08.2019 passed under
Section 24(5) of the Prohibition of Benami Property Transactions Act, 1988 and quash
the impugned order dated 28.08.2019 passed under Section 24(5) of the Prohibition
of Benami Property Transactions Act, 1988 as illegal, arbitrary and without jurisdiction.
1/8
https://www.mhc.tn.gov.in/judis
W.P.No.1698 of 2022
For Petitioner : Mr.R.Sivaraman
For Respondents : Ms.M.Sheela, Special Public Prosecutor
ORDER
The prayer sought for herein is to call for the records on the file of the 1st
respondent in Ref.No.R-1026/2018 and quash the impugned order dated 28.08.2019
passed under Section 24(5) of the Prohibition of Benami Property Transactions Act,
1988 and quash the impugned order dated 28.08.2019 passed under Section 24(5) of
the Prohibition of Benami Property Transactions Act, 1988 as illegal, arbitrary and
without jurisdiction.
2. Though such a prayer has been sought for in the writ petition,
Mr.R.Sivaraman, learned counsel for the petitioner has fairly submitted that, when
similar issue came up before a learned Single Judge of this Court in a batch of writ
petitions in W.P.Nos.35256 of 2019 etc., all those writ petitions were allowed by an
order dated 09.04.2021. However, when appeals were filed by the Adjudicating
Authority against the said common order of the Writ Court dated 09.04.2021, all those
writ appeals were allowed by a Division Bench of this Court by order dated 04.02.2022
under which the order of the learned Single Judge has been reversed. By thus, all
those writ petitions were dismissed.
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W.P.No.1698 of 2022
3. Learned counsel for the petitioner also filed a copy of the order passed by
the learned Single Judge dated 09.04.2021 in W.P.Nos.35256 of 2029 etc., batch in
the matter of “M/s.Advance Infradevelopers Pvt Ltd., -Vs- The Adjudicating
Authority and another” and also the Division Bench judgment dated 04.02.2022 in
W.A.Nos.1682 of 2021 etc., batch in the matter of “The Adjudicating Authority
and another -Vs- M/s.Anuttam Academic Institutions”.
4. In the said Division Bench judgment referred to above dated 04.02.2022.
The relevant portions of the said judgment is extracted hereunder.
“C. FINDINGS
31.In view of the above analysis of the facts, in the light of
the legal principles as stated in the preceding paragraphs, this
Court is of the opinion that the Learned Judge was not correct in
entertaining the writ petitions, when there being an efficacious
appeal remedy under Section 46 of the Act, where all the
contentions, including whether the order has been passed by the
Adjudicating Authority in accordance with Section 26 (7) of the Act,
could have been raised and decided. As already discussed and
delved in detail above, the words ?date of the order? appearing in
Section 46 can only be interpreted and read to mean ?date of
receipt of the order? for the purpose of computing the limitation for
filing the appeal under Section 46 of the Act.
32. However, the Learned Judge without going into the
question of maintainability of the writ petitions, travelled into the
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W.P.No.1698 of 2022
case on the ground of limitation raised by the respondents / writ
petitioners, as prescribed under Section 26(7) of the Act and
rendered a finding on the same. Therefore, this Court has to
necessarily test the said order under appeal in the light of the
provisions of the Act and the applicable legal principles.
Accordingly, on such application, this Court has reached the firm
conclusion that the orders passed by the first appellant do not suffer
from infirmity on the ground of alleged violation of Section 26 (7)
of the Act. In other words, the orders impugned in the writ petitions
are well within the timeline as stated under Section 26 (7) and is
immune from attack on this ground.
33. Since the other aspects on the merits of the case are
not the subject matter of this batch of appeals and all these intra
court appeals have arisen from the order of the Learned Judge,
where the only ground taken by the respondents/ writ petitioners
was on the limitation as per Section 26(7) of the Act, this Court is
not rendering any finding on the merits of the orders passed by the
first appellant / Adjudicating Authority under Section 26 (3) of the
Act.
34. In such view of the matter, it is therefore left open to
the parties to challenge the orders impugned in the writ petitions
before the Appellate Authority under Section 46 of the Act, which
authority shall entertain the appeal, if it is filed within 45 days from
the date of receipt of this judgment, so as to exclude the time
consumed in litigation, in the interest of parties, and in consonance
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W.P.No.1698 of 2022
with the general principles of the law of limitation. Except the issue
decided by this Court with regard to the validity of the orders
passed by the first appellant in accordance with section 26(7) of the
Act, all other issues are left open to be decided by the Appellate
Authority, in accordance with law.
35. At this juncture, it would also be more appropriate to
observe that the appellants should forthwith adopt the practice of
uploading the orders passed by the Adjudicating Authority as well
as Appellate Authority online in a dedicated website. Such practice
of uploading the orders immediately after passing of the same
would obviate the situation, such as, the case on hand, and the
subsequent procedural delays, after passing of the orders till the
communication of the certified copies of the same to the parties,
would not in any way affect the validity of the orders of the
Adjudicating Authority with regard to the statutory timeline to be
followed nor would there be any doubt raised or cast on the actual
date of passing of the orders.
D. CONCLUSION
36. Resultantly, the order of the learned Judge is set aside
and all the appeals are allowed with the aforesaid observations and
directions. No costs. Consequently, connected miscellaneous
petitions are closed.”
5. By relying upon this decision, the learned counsel for the petitioner would
contend that, since those writ petitions were dismissed by reversing the judgment of
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W.P.No.1698 of 2022
the learned Single Judge by an order of the Division Bench referred to above, this
case also is liable to be dismissed. However, the learned counsel for the petitioner
wants a clarification and submits that, if this writ petition is dismissed by this Court
quoting the Division Bench judgment, once again a formal intra-Court appeal has to be
filed before the Division Bench and in order to avoid the same clarification may be
issued by this Court.
6. I have heard the learned counsel appearing for the parties and have perused
the materials placed on record.
7. In view of the judgment of the Division Bench of this Court cited supra, the
issue has been concluded. Therefore, this writ petition is liable to be dismissed.
Accordingly, it is dismissed. However, it is clarified that, since this writ petition is
dismissed in view of the Division Bench judgment referred to above, the further
exercise of filing an intra-Court appeal by way of Letters Patent Appeal before this
Court may not arise in this case. It is further clarified that, in Para 34 of the Division
Bench judgment, 45 days time had been given to file an appeal before the appellate
authority against the order impugned in those writ petitions. The same liberty is
given to the present petitioner also to prefer an appeal within the said time frame of
45 days, if he is so advised.
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W.P.No.1698 of 2022
8. With these clarifications, this writ petition is dismissed. No costs.
Consequently, connected miscellaneous petition is also dismissed.
07.02.2022
Index : Yes/No
Internet : Yes/No
KST
To
1.The Adjudicating Authority
Under The Prohibition of Benami Property
Transactions Act, 1988, Room No.26,
4th Floor, Jeevan Deep Building,
Parliament Street, New Delhi.
2.Deputy Commissioner of Income Tax
(Benami Prohibition), Room No.104,
1st Floor, Income Tax Investigation Wing
Building, 108, M.G.Road, Nungambakkam
Chennai 600 034.
https://www.mhc.tn.gov.in/judis
W.P.No.1698 of 2022
R. SURESH KUMAR, J.
KST
W.P.No. 1698 of 2022
07.02.2022
https://www.mhc.tn.gov.in/judis
