HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 2915/2019 1. Niharika Jain W/o Shri Andesh Jain, Aged About 39 Years, R/o Sawan, Shiv Marg, Banswara-327001 2. Ashok Jain S/o Shri Madan Lal Jain, Aged About 59 Years, R/o Sawan, Shiv Marg, Banswara-327001 3. Smt. Someshwari Jain W/o Shri Ashok Jain, Aged About 58 Years, R/o Sawan, Shiv Marg, Banswara-327001 4. Smt. Sheela Devi Jain W/o Shri Vinod Kumar Jain, Aged About 48 Years, R/o Sawan, Shiv Marg, Banswara-327001 5. Motiya Dodiyar, S/o Shri Wesiya Bheel, Aged About 56 Years, R/o Village Borda Tehsil Ghantol, Distt. Banswara- 327021 ----Petitioners Versus 1. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 2. Deputy Commissioner (Benami Prohibition) Jaipur And Initiating Officer, Office At Room No. 250, New Central Revenue Building, Income Tax Office, Statue Circle, Jaipur 3. Adjudicating Authority, Prohibition Of Benami Property Transaction Act 1988, Office At, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi-110001 ----Respondents Connected With S.B. Civil Writ Petition No. 15978/2017 1. M/s Manglam Build Developers Limited (a registered Companies registered under Companies Act, 1956) through its Director, Shri Rambabu Agarwal son of Shri Madan Lal Agarwal, resident of H-55, Jhakhreshwar Marg, Banipark, Jaipur 2. Shri Rambabu Agarwal Son Of Shri Madan Lal Agarwal, Resident Of H-55, Jhakhreshwar Marg, Banipark, Jaipur ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) (2 of 160) [CW-2915/2019] and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 19132/2017 Smt. Pallavi Mishra Wife Of Sh. Abhishek Mishra, Resident Of A- 801, Auram Apartment, Tilak Marg, C-Scheme, Jaipur. ----Petitioner Versus 1. Dy. Commissioner Benami Prohibition, Rajasthan And Initiating Officer, Prohibition Of Benami Transa, Ncrb Building, Income Tax Office, Statute Circle, Jaipur. 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 21751/2017 1. M/s Amar Pratap Developers Private Limited, A-21, Sadul Ganj, Bikaner through its Director Shri Ashok Kumar Modi son of Hanuman Prasad Modi, R/o A-21, Sadul Ganj, Bikaner, at present resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Centre, Sahakar Marg, Jaipur. 2. Ashok Kumar Modi son of Hanuman Prasad Modi, resident of A- 21, Sadul Ganj, Bikaner, at present resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents (3 of 160) [CW-2915/2019] S.B. Civil Writ Petition No. 9162/2018 1. Dev Kishan Acharya S/o Sh. V.c. Acharya, R/o 3-H-13, 14, R.C. Vyas Colony, Bhilwara. 2. Smt. Kiran Acharya, W/o Shri Dev Kishan Acharya, R/o 3- H-13, 14, R.C. Vyas Colony, Bhilwara. 3. Shri Mohan Lal S/o Sh. Ganesh Raigar, R/o 3-H-13, 14, R.C. Vyas Colony, Bhilwara. 4. Jai Ram S/o Sh. Ram Singh, R/o 3-H-13, 14, R.C. Vyas Colony, Bhilwara. 5. Smt. Antar Bai W/o Shri Jain Ram, R/o 3-H-13, 14, R.C. Vyas Colony, Bhilwara. ----Petitioners Versus 1. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 2. Dy. Commissioner Of Income Tax Benami Transaction And Initiating Officer Under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 3. Additional Commissioner Of Income Tax (BP) Jaipur, Room No. 239, New Central Revenue Building, Income Tax Office, Statue Circle, Jaipur. ----Respondents S.B. Civil Writ Petition No. 10852/2018 1. M/s Epic Vyapaar Pvt Limited, 3rd Floor Madhav Plaza, District Shopping Center Sahakar Marg, Jaipur, (Registered Office at Darpam Appartment, 19/1/A, Mohanlal Bahalwala Road, 3 rd Floor, Bally, Howrah) through its Director Shri Avinash Modi son of Arun Kumar Modi, resident of A-21, Sadul Ganj, Bikaner, at Present resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. 2. Shri Avinash Modi son of Arun Kumar Modi, resident of A- 21, Sadul Ganj, Bikaner, at present resident Of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. ----Petitioners Versus (4 of 160) [CW-2915/2019] 1. Dy. Commissioner Of Income Tax Benami Transaction And Initiating Officer Under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 10853/2018 1. M/s Avijit Agro Private Limited, Room No. 2, 3 rd Floor Madhav Plaza District Shoping Center, Sahakar Jaipur, through its Director Shri Ashok Kumar Modi son of Hanuman Prasad Modi, resident of A-21, Sadul Ganj, Bikaner, at present resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. 2. Ashok Kumar Modi Son Of Hanuman Prasad Modi, Resident Of A-21, Sadul Ganj, Bikaner, At Present resident of Room No. 3, 3 rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. ----Petitioners Versus 1. Dy. Commissioner Of Income Tax Benami Transaction And Initiating Officer Under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union Of India Through Its Secretary, Income Tax Department, Government of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 10868/2018 (5 of 160) [CW-2915/2019] Suman Devi Wife of Shri Pradeep Kumar, resident of Karni Pura Road, Uttar Mohalla, Danta Ramgarh Sikar (Raj.) ----Petitioner Versus 1. Dy. Commissioner Of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act, 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 11295/2018 1. M/s Vibhuti Integrated Finance Private Limited, 3 rd Floor Madhav Plaza District Shopping Centre, Sahakar Marg, Opp. Near J.P. Phatak, Jaipur, through its Director Shri Avinash Modi son of Shri Arun Kumar Modi, resident of A- 21, Sadul Ganj, Bikaner, at present resident of room no. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. 2. Shri Avinash Modi Son Of Shri Arun Kumar Modi, resident of A-21, Sadul Ganj, Bikaner, at present resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4 th Floor, (6 of 160) [CW-2915/2019] Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 11371/2018 1. M/s Amar Pratap Developers Private Limited, A-21, Sadul Ganj, Bikaner through its Director Shri Ashok Kumar Modi son of Hanuman Prasad Modi, resident of A-21, Sadul Ganj, Bikaner, at present resident of Room No. 3, 3 rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. 2. Ashok Kumar Modi Son Of Hanuman Prasad Modi, resident of A-21, Sadul Ganj, Bikaner, at present resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India through its secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 11511/2018 1. M/s Natraj Finlease Private Limited, 3 rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Opp. Near J.P. Phatak, Jaipur through its Director Shri Ashok Kumar Modi son of Hanuman Prasad Modi, resident of A-21, Sadul Ganj, Bikaner, At Present Resident of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. 2. Ashok Kumar Modi Son Of Hanuman Prasad Modi, Resident Of A-21, Sadul Ganj, Bikaner, At Present Resident Of Room No. 3, 3rd Floor, Madhav Plaza, District Shopping Center, Sahakar Marg, Jaipur. (7 of 160) [CW-2915/2019] ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 11948/2018 1. St. Wilfred Education Society, Sector 10, Meera Marg, Mansarover, Jaipur Through Its Secretary Shri Keshav Gupta S/o Shri Mahesh Kumar Gupta. 2. Adarsh Gyan Vidhalya Samiti, Badaya Chamber, Film Colony, Jaipur Through Its Secretary Shri Suresh Kumar S/o Shri Gopal Das Badaya ----Petitioners Versus 1. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 2. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 3. Additional Commissioner Of Income Tax Bp Jaipur, Room No. 239, New Central Revenue Building, Income Tax Office, Statute Circle, Jaipur. ----Respondents S.B. Civil Writ Petition No. 12580/2018 Jaspal Singh Son of Jangir Singh Bawari, Resident Of Chak 28 KYD, Bariyanwali, Tehasil Khajuwala, District Bikaner ----Petitioner Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) (8 of 160) [CW-2915/2019] and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Room No.26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 12613/2018 1. Shri Raghav Trading Corporation, A-12, Karni Nagar, Pawanpuri, Bikaner through its Partner Shri Anil Asopa Son of Shri Shyam Sundar Asopa, resident of Plot No. 3,4,5, Flat No. 301, Platinum, Chandra Kala Colony, Dungarpura, Paniki Tankiwali Gali,tonk Road, Jaipur 2. Shri Anil Asopa Son Of Shri Shyam Sundar Asopa, Resident Of Plot No. 3,4,5, Flat No. 301, Platinum, Chandra Kala Colony, Dungarpura, Paniki Tankiwali Gali, Tonk Road, Jaipur ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi 3. Adjudicating Authority, under Prohibition Of Benami Property Transaction Act, 1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 12617/2018 1. M/s Naman Buildcon, A-12, Karni Nagar, Pawanpuri, Bikaner Through Its Partner Shri Vinit Asopa S/o Shri Girija Shankar Asopa R/o Plot No. 3,4,5 Flat No. 301, Platinum, Chandra Kala Colony, Durgapura, Pani Ki Tankiwali Gali, Tonk Road, Jaipur. (9 of 160) [CW-2915/2019] 2. Shri Vinit Asopa S/o Shri Girija Shankar Asopa, R/o Plot No. 3,4,5 Flat No. 301, Platinum, Chandra Kala Colony, Durgapura, Pani Ki Tanki Wali Gali, Tonk Road, Jaipur. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi. 3. Adjudicating Authority Under Prohibition Of Benami Property Transaction Act, 1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi -110001 ----Respondents S.B. Civil Writ Petition No. 14222/2018 Bhanwara Ram Nayak S/o Shera Ram Nayak, aged about 57 yrs, R/o Ridmalsar, Purohitan, Sagar, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001 ----Respondents S.B. Civil Writ Petition No. 14260/2018 Balram Meghwal S/o Ishwar Ram Meghwal, aged about 36 .years, R/o Near Manoj Dal Mill, Sarvoday Basti, Bikaner. (10 of 160) [CW-2915/2019] ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14274/2018 Kishan Lal S/o Pira Ram Nayak, aged about 45 years, R/o Nayako ka Mohalla, Village Palana, District Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14275/2018 Shyam Lal Mehtar S/o Kalu Ram Mehtar, aged about 36 years, R/o Behind Shiv Mandir, Shivbari, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, (11 of 160) [CW-2915/2019] NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14276/2018 Tejpal Mehtar S/o Kalu Ram Mehtar, aged about 31 years, R/o Behind Shiv Mandir, Shivbari, Bikaner ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India, New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14277/2018 Kishan Lal Mehatar S/o Kalu Ram Mehater, aged about 32 yr., R/o Behind shiv Mandir, Shivbari, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union Of India Through Its Secretary, Income Tax (12 of 160) [CW-2915/2019] Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14279/2018 Sharwan Singh, S/o Nayak Singh Bawari, aged about 56 years, R/o 28 KYD, Khajuwala, Bikaner, through power of attorney holder Sh. Anil Lohiya S/o Nemi Chand Lohiya, aged 40 years, R/o F-101, Vallabh Garden, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14282/2018 Girja Shankar Asopa S/o Mahadev Asopa, aged 60 years, R/o A-12, Karni Nagar, Pawam Puri, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi (13 of 160) [CW-2915/2019] 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14285/2018 Jangir Singh, S/o Nanak Singh Bawari, aged about 59 years, R/o 28 KYD, Khajuwala, Bikaner through power of attorney holder Sh. Anil Lohiya S/o Nemi Chand Lohiya, aged 40 years, R/o F-101, Vallabh Garden, Binaker. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14286/2018 Ratan Sirohi S/o Shri Gopal Kishan Sirohi, aged about 40 years, R/o Opposite Karni Market, Phar Bazar, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, (14 of 160) [CW-2915/2019] Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 14289/2018 Pratap Singh, S/o Nanak Singh Bawari, aged about 40 years, R/o 28 KYD, Khajuwala, Bikaner, throuth power of attorney holder sh. Anil Lohiya S/o Nemi chand Lohiya, aged 40 years, R/o F-101, Vallabh Garden, Bikaner. ----Petitioners Versus 1. Dy. Commissioner of Income Tax (Benami Transaction) and Initiating Officer under Prevention of Benami Transaction Act 2016, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union Of India Through Its Secretary, Income Tax Department, Government Of India , New Delhi 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act 1988, Room No. 26, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi- 110001. ----Respondents S.B. Civil Writ Petition No. 15308/2018 Smt Beena Singh Wife Of Dr. Jitendra Singh, Aged About 53 Years, Resident Of Village Pidwali, Panchayat Samiti And Tehsil Bayana, District Bharatpur In State Of Rajasthan ----Petitioner Versus 1. Union Of India, Through Secretary, Ministry Of Finance (Department Of Revenue) North Block, New Delhi 2. Deputy Commissioner Of Income-Tax (Benami Prohibition) & Initiating Officer, Under Prohibition Of Benami Property Transactions Act, 1988, New Central Revenue Building, Statue Circle, Bhagwan Das Road, C- Scheme, Jaipur ----Respondents S.B. Civil Writ Petition No. 16304/2018 (15 of 160) [CW-2915/2019] Gulab Singh Yadav alias Ramu Ram Alias Ramu Son Of Brij Lal Alias Virdhi Chand, Aged About 45 Years, R/o Plot No. 804E, Kisan Marg, Opp. Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur ----Petitioner Versus 1. Union Of India Through Its Secretary, Income Tax Department, Government Of India New Delhi 2. Dy. Commissioner Of Income Tax (Benami Prohibition) And Initiating Officer, Under Prevention Of Benami Property Transaction Act, 1988, Room No. 250, Statue Circle, Ncrb, Statue Circle, Jaipur 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act1988, Room No. 26, 4 th Floor, Jeevan Deep Building, Parliament Street, New Delhi -110001 ----Respondents S.B. Civil Writ Petition No. 21219/2018 M/s Finetech Macro Developers Pvt. Ltd., (a registered companies registered Under Companies Act, 1956) Registered Office E-666, Prim Pavilion, Nakul Path, Lal Kothi Scheme, Jaipur through its Director, Shri Charan Singh Khangarot, S/o Shri Mukut Singh, By Caste Rajput Aged About 41 Years Resident of Plot No. M-28, Income Tax Colony, Tonk Road, Jaipur, Rajasthan. ----Petitioner Versus 1. Dy. Commissioner (Benami Prohibition), Rajasthan And Initiating Officer, Prohibition Of Benami Transactions Act, 1988, Room No. 250, Statue Circle, NSRB, Income Tax Office, Jaipur 2. Adjudicating Authority, (Under Prohibition Of Benami Property Transactions Act, 1988), Office At Room No. 26, Fourth Floor, Jeevan Deep Building, New Delhi-110001 3. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 21220/2018 M/s Finetech Macro Developers Pvt. Ltd., (a registered companies registered Under Companies Act, 1956) (16 of 160) [CW-2915/2019] Registered Office E-666, Prim Pavilion, Nakul Path, Lal Kothi Scheme, Jaipur Through Its Director, Shri Charan Singh Khangarot, S/o Shri Mukut Singh, By Caste Rajput Aged About 41 years resident of Plot No. M-28, Income Tax Colony, Tonk Road, Jaipur, Rajasthan. ----Petitioner Versus 1. Dy. Commissioner (Benami Prohibition), Rajasthan And Initiating Officer, Prohibition Of Benami Transactions Act, 1988, Room No. 250, Statue Circle, Ncrb, Income Tax Office, Jaipur 2. Adjudicating Authority, (Under Prohibition Of Benami Property Transactions Act, 1988), Office At Room No. 26, Fourth Floor, Jeevan Deep Building, New Delhi-110001 3. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 21229/2018 M/s Finetech Macro Developers Pvt. Ltd., (a Registered Companies registered under Companies Act, 1956) registered office E-666, Prim Pavilion, Nakul Path, Lal Kothi Scheme, Jaipur through its Director, Shri Charan Singh Khangarot, S/o Shri Mukut Singh, By Caste Rajput Aged About 41 Years Resident Of Plot No. M-28, Income Tax Colony, Tonk Road, Jaipur, Rajasthan. ----Petitioner Versus 1. Dy. Commissioner (Benami Prohibition), Rajasthan And Initiating Officer, Prohibition Of Benami Transactions Act, 1988, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Adjudicating Authority, (Under Prohibition Of Benami Property Transactions Act, 1988), Office At Room No. 26, Fourth Floor, Jeevan Deep Building, New Delhi-110001 3. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 25438/2018 Dr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S/o Late Sh. (17 of 160) [CW-2915/2019] Braj Lal alias Virdhi Chand Yadav, Aged About 52 Years, R/o Plot No. 10, Achrol House, Civil Lines, Jaipur, Rajasthan. ----Petitioner Versus 1. Union Of India, Through Its Secretary, Ministry Of Finance, Department Of Revenue, Government Of India, New Delhi. 2. Dy. Commissioner Of Income Tax, (Benami Prohibition) and Initiating Officer Under Prevention Of Benami Property Transaction Act 1988, Room No. 250, NCR Building, Statue Circle, Jaipur. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Through Its Registrar, Room No. 17, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi - 110001 4. Sh. Gulab Singh Yadav S/o Sh. Braj Lal @ Virdhi Chand Yadav, Aged About 45 Years, R/o Plot No. 804 E, Kisan Marg, In Front of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. ----Respondents S.B. Civil Writ Petition No. 25439/2018 Dr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S/o Late Sh. Braj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R/o Plot No. 10, Achrol House, Civil Lines, Jaipur, Rajasthan. ----Petitioner Versus 1. Union Of India, Through Its Secretary, Ministry Of Finance, Department Of Revenue, Government Of India, New Delhi. 2. Dy. Commissioner Of Income Tax, (Benami Prohibition) And Initiating Officer Under Prevention Of Benami Property Transaction Act 1988, Room No. 250, NCR Building, Statue Circle, Jaipur. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Through Its Registrar, Room No. 17, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi 110001 ---Respondents (18 of 160) [CW-2915/2019] 4. Sh. Gulab Singh Yadav S/o Sh. Braj Lal @ Virdhi Chand Yadav, R/o Plot No. 804 E, Kisan Marg, in front Of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. 5. Smt. Vinita Yadav W/o Sh. Gulab Singh Yadav, R/o Plot No. 804 E, Kisan Marg, In Front Of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. 6. Ms. Riya Yadav D/o Sh. Gulab Singh Yadav R/o Plot no. 804 E, Kisan Marg, in Front Of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. ----Proforma Respondents S.B. Civil Writ Petition No. 25440/2018 Dr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S/o Late Sh. Braj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R/o Plot No. 10, Achrol House, Civil Lines, Jaipur, Rajasthan. ----Petitioner Versus 1. Union Of India, Through Its Secretary, Ministry Of Finance, Department Of Revenue, Government Of India, New Delhi. 2. Dy. Commissioner Of Income Tax, (Benami Prohibition) and Initiating Officer Under Prevention Of Benami Property Transaction Act 1988, Room No. 250, NCR Building, Statue Circle, Jaipur. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Through Its Registrar, Room No. 17, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi 110001 ------Respondents 4. Sh. Gulab Singh Yadav S/o Sh. Braj Lal @ Virdhi Chand Yadav, R/o Plot No. 804 E, Kisan Marg, In Front Of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. ----Proforma Respondents S.B. Civil Writ Petition No. 25441/2018 Dr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S/o Late Sh. Braj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R/o Plot No. 10, Achrol House, Civil Lines, Jaipur, Rajasthan. ----Petitioner Versus (19 of 160) [CW-2915/2019] 1. Union Of India, Through Its Secretary, Ministry Of Finance, Department Of Revenue, Government Of India, New Delhi. 2. Dy. Commissioner Of Income Tax, (Benami Prohibition) And Initiating Officer Under Prevention Of Benami Property Transaction Act 1988, Room No. 250, Ncr Building, Statue Circle, Jaipur. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Through Its Registrar, Room No. 17, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi - 110001 4. Sh. Gulab Singh Yadav S/o Sh. Braj Lal @ Virdhi Chand Yadav, R/o Plot No. 804 E, Kisan Marg, In Front Of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. ----Respondents S.B. Civil Writ Petition No. 25602/2018 Dr. Ram Singh Yadav @ Ramu Ram @ Ramu Yadav S/o. Late Sh. Braj Lal Alias Virdhi Chand Yadav, Aged About 52 Years, R/o. Plot No. 10, Achrol House, Civil Lines, Jaipur, Rajasthan. ----Petitioner Versus 1. Union Of India, Through Its Secretary, Ministry Of Finance, Department Of Revenue, Government Of India, New Delhi. 2. Dy. Commissioner Of Income Tax (Benami Prohibition), And Initiating Officer Under Prevention Of Benami Property Transaction Act 1988, Room No. 250, NCR Building, Statue Circle, Jaipur. 3. Adjudicating Authority, Under Prohibition Of Benami Property Transaction Act, 1988, Through Its Registrar, Room No. 17, 4Th Floor, Jeevan Deep Building, Parliament Street, New Delhi-110 001. ----Respondents 4. Sh. Gulab Singh Yadav S/o. Sh. Braj Lal @ Virdhi Chand Yadav, Aged About 45 Years, R/o Plot No. 804 E, Kisan Marg, In Front Of Ahinsa Park, Barkat Nagar, Tonk Road, Jaipur. ----Proforma Respondents S.B. Civil Writ Petition No. 27102/2018 (20 of 160) [CW-2915/2019] 1. Sitaram Meena S/o Shri Phool Chand Meena, aged about 33 Years, By Caste Meena, R/o 199, Patel Colony, Badi Ka Baas, via-Sitapura Tehsil Sanganer, Jaipur (Rajasthan) 2. Charan Singh Khangarot S/o Shri Mukut Singh Khangarot, aged about 40 Years, By Caste Rajput, R/o M-28, Income Tax Colony, Durgapura Tonk Road, Jaipur, Rajasthan 3. Udai Buildhome Pvt. Ltd., having its registered office at 302, Golden Sunrise Apartment, Lajpat Nagar, C-Scheme, Jaipur through its principal officer/ director duly Shri Sandeep Sharma S/o Shri Totaram Sharma aged 36 Years R/o 74-B, Phool Kunj, Gaurav Nagar, Civil Lines, Jaipur duly authorized by company ----Petitioners Versus 1. Dy Commissioner (Benami Prohibition), Rajasthan And Initiating Officer, Prohibition of Benami Transactions Act, 1988, Room No. 250, Statue Circle, Ncrb, Income Tax Office, Jaipur 2. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi 3. Adjudicating Authority (Under Prohibition Of Benami Property Transactions Act, 1988), Office at Room No. 26, Fourth Floor, Jeevan Deep Building, New Delhi-110001 ----Respondents S.B. Civil Writ Petition No. 27114/2018 1. Sitaram Meena S/o Shri Phool Chand Meena, aged about 33 Years, By caste Meena , R/o 199, Patel Colony, Badi Ka Baas, via-Sitapura Tehsil Sanganer, Jaipur (Rajasthan) 2. Charan Singh Khangarot S/o Shri Mukut Singh Khangarot, aged about 40 Years, By Caste Rajput, R/o M-28, Income Tax Colony, Durgapura Tonk Road, Jaipur, Rajasthan 3. Udai Buildhome Pvt. Ltd., having its registered office at 302, Golden Sunrise Apartment, Lajpat Nagar, C-Scheme, Jaipur through its principal officer/ director duly Shri Sandeep Sharma S/o Shri Totaram Sharma aged 36 Years R/o 74-B, Phool Kunj, Gaurav Nagar, Civil Lines, Jaipur duly authorized by company ----Petitioners Versus (21 of 160) [CW-2915/2019] 1. Dy. Commissioner (Benami Prohibition), Rajasthan and Initiating Officer, Prohibition of Benami Transactions Act, 1988, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur 2. Union of India, Through its Secretary, Income Tax Department, Government Of India, New Delhi 3. Adjudicating Authority (Under Prohibition Of Benami Property Transactions Act, 1988), Office At Room No. 26, Fourth Floor, Jeevan Deep Building, New Delhi-110001 ----Respondents S.B. Civil Writ Petition No. 27550/2018 Kishan Singh, S/o Shri Gopal Singh, aged about 50 Years, R/o 13, Jai Kishan Colony, Tonk Phatak, Jaipur In State Of Rajasthan. ----Petitioner Versus 1. Union Of India, Through Secretary, Ministry Of Finance (Department Of Revenue) North Block, New Delhi 2. Deputy Commissioner Of Income-Tax (Benami Prohibition) & Initiating Officer, Under Prohibition Of Benami Property Transactions Act, 1988, New Central Revenue Building, Statue Circle, Bhagwan Das Road, C- Scheme, Jaipur ----Respondents S.B. Civil Writ Petition No. 27551/2018 Chandra Mohan Bhati, S/o Shri Gendilal Ji Bhati, Aged About 53 Years, R/o 17, Kalyan Colony, Barkat Nagar, Tonk Phatak, Jaipur In State of Rajasthan. ----Petitioner Versus 1. Union Of India, Through Secretary, Ministry Of Finance (Department Of Revenue) North Block, New Delhi 2. Deputy Commissioner Of Income-Tax (Benami Prohibition) & Initiating Officer, Under Prohibition Of Benami Property Transactions Act, 1988, New Central Revenue Building, Statue Circle, Bhagwan Das Road, C- Scheme, Jaipur ----Respondents (22 of 160) [CW-2915/2019] S.B. Civil Writ Petition No. 27552/2018 Vinika Bhati, D/o Shri Chandra Mohan Bhati, Aged About 26 Years, R/o 17, Kalyan Colony, Barkat Nagar, Tonk Phatak, Jaipur In State Of Rajasthan ----Petitioner Versus 1. Union Of India, Through Secretary, Ministry Of Finance (Department Of Revenue) North Block, New Delhi 2. Deputy Commissioner Of Income-Tax (Benami Prohibition) And Initiating Officer, Under Prohibition Of Benami Property Transactions Act, 1988, New Central Revenue Building, Statue Circle, Bhagwan Das Road, C- Scheme, Jaipur ----Respondents S.B. Civil Writ Petition No. 27553/2018 Laxmi Bhati, W/o Shri Chandra Mohan Bhati, Aged About 51 Years, R/o 17, Kalyan Colony, Barkat Nagar, Tonk Phatak, Jaipur In State Of Rajasthan ----Petitioner Versus 1. Union Of India, Through Secretary, Ministry Of Finance (Department Of Revenue) North Block, New Delhi 2. Deputy Commissioner Of Income-Tax (Benami Prohibition) And Initiating Officer, Under Prohibition Of Benami Property Transactions Act, 1988, New Central Revenue Building, Statue Circle, Bhagwan Das Road, C- Scheme, Jaipur ----Respondents S.B. Civil Writ Petition No. 27554/2018 Anjali Rathore, W/o Shri Kishan Singh, Aged About 49 Years, R/o 13, Jai Kishan Colony, Tonk Phatak, Jaipur In State Of Rajasthan ----Petitioner Versus 1. Union Of India, Through Secretary, Ministry Of Finance (Department Of Revenue) North Block, New Delhi 2. Deputy Commissioner Of Income-Tax (Benami Prohibition) & Initiating Officer, Under Prohibition Of (23 of 160) [CW-2915/2019] Benami Property Transactions Act, 1988, New Central Revenue Building, Statue Circle, Bhagwan Das Road, C- Scheme, Jaipur ----Respondents S.B. Civil Writ Petition No. 4212/2019 Ramdhan Meena S/o Rewad Mal Meena, Village - Langdiyawad, Tehsil- Jamwaramgarh, District- Jaipur. ----Petitioner Versus 1. Deputy Commissioner Of Income Tax, (Benami Prohibition) & Initiating Officer Under Prohibition Of Benami Property Transactions Act For State Of Rajasthan, Room No. 250, New Central Revenue Building, Statue Circle, C-Scheme, Jaipur (Rajasthan). 2. Union Of India, Through Secretary, Ministry Of Finance, Department Of Revenue, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 4396/2019 Ramdhan Meena S/o Rewad Mal Meena, Village- Langdiyawad, Tehsil- Jamwaramgarh, District- Jaipur (Rajasthan). ----Petitioner Versus 1. Deputy Commissioner Of Income Tax, (Benami Prohibition) & Initiating Officer Under Prohibition Of Benami Property Transactions Act For State Of Rajasthan, Room No. 250, New Central Revenue Building, Statue Circle, C-Scheme, Jaipur (Rajasthan) 2. Union Of Inida, Through Secretary, Ministry Of Finance, Department Of Revenue, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 4704/2019 Sita Devi W/o Shri Ramdhan Meena, Aged About 28 Years, R/o Village - Langdiyawad, Tehsil - Jamwaramgarh, District - Jaipur. (Rajasthan). ----Petitioner (24 of 160) [CW-2915/2019] Versus 1. Deputy Commissioner Of Income Tax, (Benami Prohibition) & Initiating Officer Under Prohibition Of Benami Property Transactions Act For State Of Rajasthan, Room No. 250, New Central Revenue Building, Statue Circle, C-Scheme, Jaipur (Rajasthan). 2. Union Of India, Through Secretary, Ministry Of Finance, Department Of Revenue, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 4897/2019 Ramdhan Meena S/o Rewad Mal Meena, Village- Langdiyawad, Tehsil- Jamwaramgarh, District- Jaipur. (Rajasthan). ----Petitioner Versus 1. Deputy Commissioner Of Income Tax, (Benami Prohibition) & Initiating Officer Under Prohibition Of Benami Property Transactions Act For State Of Rajasthan, Room No. 250, New Central Revenue Building, Statue Circle, C-Scheme, Jaipur (Rajasthan). 2. Union Of India, Through Secretary, Ministry Of Finance, Department Of Revenue, Income Tax Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 5284/2019 1. M/s Manglam Build Developers Limited, (a registered companies registered under Companies Act, 1956) through its Authorized Signatory, Shri Sanjay Gupta Son Of Shri Nand Kishore Gupta, resident of C-9, Barwada House, Civil Lines, Jaipur. 2. Shri Sanjay Gupta Son Of Shri Nand Kishore Gupta, Resident Of C-9, Barwada House, Civil Lines, Jaipur. ----Petitioners Versus 1. Dy. Commissioner Of Income Tax, (Benami Transaction) and Initiating Officer Under Prohibition Of Benami Property Transaction Act 1988, Room No. 250, Statue Circle, NCRB, Income Tax Office, Jaipur. 2. Union Of India Through Its Secretary, Income Tax (25 of 160) [CW-2915/2019] Department, Government Of India, New Delhi. ----Respondents S.B. Civil Writ Petition No. 5352/2019 Ram Singh Meena S/o Sh. Ramkaran, Aged About 50 Years, R/o Mohalla Mainpura, Sawaimadhopur (Rajasthan). ----Petitioner Versus 1. Dy. Commissioner Of Income Tax, (Benami Transaction) And Initiating Officer Under Prohibition Of Benami Property Transaction Act 1988, Room No. 250, Statue Circle, Ncrb, Income Tax Office, Jaipur. 2. Union Of India, Through Its Secretary, Income Tax Department, Government Of India, New Delhi. ----Respondents For Petitioner(s) : Mr. K.K. Sharma, Sr. Adv. with Mr. Sandeep Taneja Mr. M.M. Ranjan, Sr. Adv. with Mr. Rohan Agarwal Mr. Anant Kasliwal with Mr. Vaibhav Kasliwal, Ms. Charu Pareek, Mr. Pradeep Kumar Mr. Gunjan Pathak Mr. N.L. Agarwal For Respondent(s) : Mr. Prabhuling K Navadgi, Sr. Adv. with Mr. Prabhansh Sharma, Mr. R.B. Mathur HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 12th July, 2019 above noted batch of writ applications, projects challenge to jurisdiction of income tax authorities in initiation of proceedings under section 24 of Prohibition of Benami Property Transactions Act, 1988 (for short, Benami Act of 1988), as amended vide Benami Transactions (Prohibition) Amendment Act, 2016 (for short, Benami Amendment Act of (26 of 160) [CW-2915/2019] 2016), which came into effect on 01st November, 2016. Hence, matters have been entertained collectively for final adjudication at this stage by this common order consented by counsel for parties. 2. Shorn off unnecessary details, essential skeletal material facts needs to be taken note of for adjudication of controversy are: that Income Tax Department conducted search and seizure under Section 132 of Income Tax Act, 1961, on various premises belonging to petitioners and in course of search and seizure, several incriminating documents were found, indicating several benami transactions in purchase of lands involved herein. Accordingly, show cause notices were issued under section 24 (1) of amended Benami Act of 1988, to show cause why action should not be taken against them under Section 24 (4) of amended Benami Act of 1988, as consideration was actually paid by petitioners but land was purchased in name and by another person, thus, making it clear case of benami transaction. respondent department made order of provisional attachment under Section 24 (3) of amended Benami Act, in respect of properties mentioned in show cause notices. It is pleaded case of petitioners that initiating officer has acted without jurisdiction, as Benami Transaction (Prohibition) Amendment Act, 2016, came into effect on 01 st November, 2016 and alleged benami transactions took place prior to that date. said notices were responded in same terms. However, Initiating Officer of respondent department made order under Section 24 (4) of amended Benami Amendment Act of 2016, continuing provisional attachment of properties involved (27 of 160) [CW-2915/2019] herein. Thereafter, further show cause notices were issued by Adjudicating Authority under provisions of Benami Amendment Act of 2016, as to why order of provisional attachment of benami properties should not be confirmed and matters are still pending before said authority. petitioners, aggrieved of initiation of proceedings and orders aforesaid, for being without jurisdiction, have instituted instant writ petitions before this court. 3. Mr. Kamlakar Sharma, learned senior counsel for petitioner(s), stated that initiation of very proceedings for provisional attachment of alleged benami properties, from very beginning is per se illegal and arbitrary, as alleged benami transactions took place before search proceedings and Benami Amendment Act of 2016, that came into existence with effect from 01st November, 2016, vide notification dated 25 th October, 2016, and therefore, Benami Amendment Act of 2016, shall have prospective effect. Since alleged benami transactions and date of discovery of alleged benami transactions, are, of date prior to coming into force of Benami Amendment Act of 2016; hence, provisions as such are inapplicable to present cases. 4. Learned counsel for petitioners vehemently asserted that intent in introduction of Benami Amendment Act of 2016, was to eradicate discrepancies and loop holes that have crept in with passage of time after introduction of Benami Act of 1988. Further, referring to text of section 1 and 6 of Benami Amendment Act of 2016, it is vociferously contended that it was never intention of either legislation or executive (28 of 160) [CW-2915/2019] that provisions of Benami Amendment Act of 2016; be applicable with retrospective effect. According to learned counsel for petitioners, language employed with statement that whoever enters into any benami transaction on and after date of commencement of Benami Amendment Act of 2016, that is on 1st November, 2016 or afterwards; leaves no room for any doubt that alleged benami transactions so transacted by petitioners, before commencement of Benami Amendment Act of 2016, doesn t fall under its purview. 5. In backdrop of section 3 (3) of Benami Act of 1988 and new section 53 of Benami Amendment Act of 2016, it is pointed out that punishment for benami transaction under Benami Act of 1988, was imprisonment for 3 years, which has been now extended to 7 years, through Benami Amendment Act of 2016. Therefore, said amendment and provisions introduced, cannot be applied retrospectively with penal consequences. 6. It was further added by learned senior counsel for petitioners that as per earlier provisions of Benami Act of 1988, benami property was to be acquired by Government by acquisition and no compensation was to be paid for such acquisition. Rules and Regulations for acquisition aforesaid, were supposed to follow Act of 1988, but same were never framed and notified thus making acquisition of land through benami transaction, under old/un-amended provisions redundant. Now, as per provisions of Benami Amendment Act of 2016, said benami property shall be confiscated instead of acquisition. For confiscation of property, is penal provision which can only be prospective and if penal provision is to be (29 of 160) [CW-2915/2019] applied retrospectively, that would be arbitrary, illegal and in violation of Article 20 of Constitution of India in absence of any contemplation to that effect under amended Act. Thus, Benami Amendment Act of 2016; cannot have retrospective application. 7. Counsel for petitioners repelling preliminary contention as to very maintainability of instant writ petitions for matters were stated to be pending before Adjudicating Authority, and therefore, being pre-mature and not maintainable before this court; contended that glance of section 24 of Benami Amendment Act of 2016; would reflect that writ petitions are very much maintainable. For as per Section 24 (1) of Benami Amendment Act of 2016, Initiating Officer shall issue notice to show cause as to why property in question shall not be considered benami property and further issue notice of provisional attachment of said benami property. Moreover, there is no provision provided in section 24 of Benami Amendment Act of 2016, to file appeal against provisional attachment of alleged benami property. Thus, petitioners are left with no option other than to invoke jurisdiction of this court under Article 226 and/or 227 of Constitution of India. Further, petitioners have challenged very jurisdiction and authority of respondent department to make such provisional attachment of alleged benami property, and therefore, instant writ petitions are maintainable as petitioners have no other remedy for redressal of their grievance. 8. It is further alleged that respondent department has initiated proceeding involved herein in order to harass and (30 of 160) [CW-2915/2019] torment petitioners for it is evident from fact that respondent department referred matters to Adjudicating Authority so soon they learned of institution of instant writ applications by petitioners before this court. Furthermore, respondent department issued notices under Section 24 (3) of Benami Amendment Act of 2016, to petitioners on very same day when it issued notice to local authorities to provide information with respect to transactions made in regard to alleged subject benami property. notices under Section 24 (3) of Benami Amendment Act of 2016; are to be issued after making thorough inquires and examination of reports or evidences and not after issuing notices. Therefore, oblique intent of respondent department is apparent on face of record. 9. It is also pointed that no Rules could have been framed in exercise of powers under section 68 of Benami Amendment Act of 2016, before 1st November, 2016 i.e. date of its commencement. Hence, Rules framed under Benami Amendment Act of 2016, are of no consequence. In order to fortify their stand learned counsel for petitioners have relied upon following dictionary meaning of term confiscation, phrase Jaipur Region , Notifications, and opinions: 1. Notification of Ministry of Finance (Central Board of Direct Taxes), dated 25th October, 2016. 2. Notification of Ministry of Finance (Department of Revenue), dated 25th October, 2016. 3. Notification of Ministry of Finance (Department of Revenue), dated 25th October, 2016, S.O. 3288 (E), S.O. 3289(E) and 6A. 6. (31 of 160) [CW-2915/2019] Notification of Ministry of Finance (Department of Revenue), dated 19th May, 2016, S.O. 1830 (E), (iii) 4. Benami Transactions (Prohibition) Act, 1988 (for short, Act of 1988 ) 5. In case of R. Rajagopal Reddy (dead) by LRs. And Ors. Vs. Padmini Chandrashekharan (Dead) by LRs.: (1995)2 SCC 630. 6. In case of Mangathai Ammal (died) through Lrs and Ors. Vs. Rajeshwari & Ors.:Civil Appeal No. 4805 of 2019, decided by Apex Court of land, on 9th May, 2019. 7. In case of K.T. Plantation Pvt. Ltd. and Anr. Vs. State of Karnataka: AIR 2011 SC 3430. 8. In case of Garikapati Veeraya vs. N. Subbiah Choudhary and Ors. : AIR 1957 SC 540. 9. In case of Keshavan Madhava Menon Vs State of Bombay: AIR 1951 SC 128. 10. In case of Monnet Ispat & Energy Ltd. Vs. UOI & Ors. (2012) 11 SCC 1. 11. Commissioner of Income Tax vs. Vatika Township Private Limited (2015) 1 SCC 1 12. Prakash and Ors. vs. Phulavati and Ors. (2016) 2 SCC 36 13. Sukhdev Singh vs. State of Haryana (2013) 2 SCC 212 14. J.S Yadav Vs. State of U.P. & Ors. 2011 6 Scc 570 15. Shakti Tubes Ltd. vs. State of Bihar and Ors. (2009) 7 SCC 673 (32 of 160) [CW-2915/2019] 16. O. Konavalov vs. Commander, Coast Guard Region and Ors. (2006)4SCC620 17. M/S Pepsi Foods Ltd. and Ors. vs. Special Judicial Magistrate and Ors. AIR 1998 SC 128 18. Collector of Central Excise, Ahmedabad vs. Orient Fabrics Pvt. Ltd. (2004 ) 1 SCC 597 19. Suhas H. Pophale vs. Oriental Insurance Co. Ltd. and its Estate Officer (2014) 4 SCC 657 20. State of Punjab and Ors. vs. Bhajan Kaur and Ors. (2008 ) 12SCC 112 21. Jeans Knit (P) Ltd. vs. Deputy Commissioner of Income Tax and Ors (2018) 12 SCC 36 22. Calcutta Discount Company Limited vs. Income Tax Officer, Companies District, I and Ors. AIR 1961 SC 372 23. Raza Textiles Ltd. vs. Income Tax Officer, Rampur (1973) 1 SCC 633 24. Malayala Manorama Co. Ltd vs Assistant Commissioner, Commercial Taxes , Civil Appeal No. 2267/2007, decided on July 8, 2010 25. In case of Bhibhuti Bhusan Bankura Vs. Sate of West Bengal: 1994 (1) CLJ 353 26. In case of Thakur Bhim Singh (dead) By Lrs and Ors. Vs. Thakur Kan Singh: AIR 1980 SC 727. 27. Joseph Isharat vs. Rozy Nishikant Gaikwad 2017(5)ABR706 (33 of 160) [CW-2915/2019] 10. Per contra: Mr. Prabhuling K. Navadgi, learned Sr. counsel with Mr. Prabhansh Sharma and Mr. R.B. Mathur, advocates, resisted claim of petitioners raising preliminary objections as to very maintainability of writ applications at this stage while entire proceedings are pending consideration before Adjudicating Authority. Learned counsel vehemently contended that it is well settled proposition of law that jurisdiction under Article 226 and/or 227 of Constitution of India can only be exercised when there is no remedy available to parties. According to learned counsel for respondents, law in this reference is no more res-integra, as has been declared by Apex Court of land on several occasions. In backdrop of provisions of Benami Act of 1988, as amended vide Benami Amendment Act of 2016, it is contended that any order made by authority therein, would be open to inquiry before Adjudicating Authority under Section 25 and 26 of amended Act. Further, order made by Adjudicating Authority under Section 26 (3), is open to appeal before Appellate Tribunal as would be evident from Section 46 of amended Benami Act of 1988. And finally, Section 49 contemplates appeal to High Court, to any party aggrieved by any decision or order of Appellate Tribunal within period of 60 days, from date of communication of order made by Appellate Tribunal, on any question of law arising out of such order. 11. Furthermore, according to learned senior counsel, petitioners have admitted fact that matters are still pending before Adjudicating Authority. Thus, petitioners have instituted present writ applications, contrary to (34 of 160) [CW-2915/2019] Scheme of Benami Act of 1988, as amended in year 2016, which provides complete self contained procedure for resolution of matters arising therein; hence, instant batch of writ applications is premature and is not maintainable, and therefore, deserve to be dismissed on that ground alone. 12. Learned Senior Counsel for respondents also emphasized that provisions introduced by way of Benami Amendment Act of 2016, would have retrospective application and cannot be considered to be prospective keeping in view of underlying object and intendment in introduction of amended Benami Act of 1988. It is urged that main object behind introduction of Benami Act of 1988, on 19 May 1988, was to make benami transactions offence and to acquire such benami properties through acquisition without compensation as per procedure prescribed therein, so that unjust gains and benefits of evasion of taxes could be avoided. Hence, keeping in view intendment and object in introduction of amended Benami Act of 1988; incorporating necessary amendments introduced through Benami Amendment Act of 2016, only clarified and amplified intention of legislature in order to effectively cure and curb mischief of ever increasing corruption, which was also intended under Principal Act i.e. Benami Act of 1988; enacted on 19 May 1988. 13. According to learned counsel for respondents, confiscation of benami property, replacement, by way of amendment, is not new introduction in totality to Benami Act of 1988. Acquisition without compensation is nothing but confiscation only; therefore, substitution of term (35 of 160) [CW-2915/2019] acquisition by another term i.e. confiscation, cannot be termed as penal, in backdrop of object sought to be achieved through Benami Amendment Act of 2016. 14. It is further pointed out that similarly, change in definition of all Benami Transaction would not alter object and purpose which remains same as contemplated under principal Benami Act of 1988. change in definition only clarifies and amplifies existing definition, without imposing any new liability or right accruing to parties. Thus, amendment in definition of Benami Transaction is only descriptive and explanatory substitution. Referring to Rule of Hayden s case, it is contended that Lord Edverd Coke evolved well accepted test to understand effectiveness of new amendment on following criteria: (i) what was law before making of law; (ii) what was mischief and defect before Act was passed; (iii) what remedy Parliament as appointed; and (iv) what was reason of remedy. 15. Hence, applying test aforesaid, to question of retrospective application of amended provisions, involved in instant batch of writ applications, would make it evident that object in introduction of amendments, through Benami Amendment Act of 2016, is to effectively cure mischief which could not be checked effectively, as intended by Principal Act of 1988. Therefore, if amendments are not applied retrospectively, that would defeat very purpose and object of its introduction. Hence, provisions of Benami Amendment (36 of 160) [CW-2915/2019] Act of 2016, keeping in view underlying object, shall have retrospective application in order to effectively cure mischief that persisted all along even after enactment of unamended Benami Act of 1988, which consisted only of 9 Sections. 16. Learned counsel would further contend that glance of text of section 3 (3) of Benami Amendment Act of 2016, in no uncertain terms contemplates that penalty for benami transactions, on or after commencement of Benami Amendment Act of 2016, would only be punishable in accordance with provisions contained under Chapter VII of Amendment Act of 2016. Since, provision itself contemplates penalty for benami transactions on or after commencement of Benami Amendment Act of 2016, that would not mean that benami transactions prior to its commencement, shall be free from liability. According to learned counsel, intended object of statute by amendment, involved herein is two fold; firstly, benami transactions entered into on or after commencement of Benami Amendment Act of 2016, shall be punishable under amended provisions contained in Chapter VII by imprisonment for seven years, and; secondly, benami transactions prior to commencement of Benami Amendment Act of 2016, shall be penalized by existing provisions contained in unamended Benami Act of 1988, i.e by three years imprisonment. Thus, provision only provides for enhanced punishment for benami transactions entered into on or after commencement of Benami Amendment Act of 2016. Hence, no right to any party has accrued nor new liability created as to pending benami transactions. (37 of 160) [CW-2915/2019] 17. Reference has also been made to text of Section 65 of amended Benami Act of 1988, which contemplates transfer of pending cases. According to learned senior counsel, glance of text of Section 65 would reflect that procedure provided therein for prevention of Benami Transactions under provisions of Benami Amendment Act of 2016, shall also apply to all Benami Transactions pending on enactment of Benami Amendment Act of 2016. Hence, retrospective applicability of amended Act of Benami Act of 1988, is explicit. In order to buttress his contentions reliance is placed on following opinions: 1. Sree Bank Ltd. vs. Sarkar Dutt Roy and Co. AIR 1966 SC 1953 2. Buckingham and Carnatic Co.Ltd. vs. Venkatiah and Ors. [1964 ]4SCR 265 3. Rai Bahadur Seth Shreeram Durgaprasad vs. Director of Enforcement (1987 )3SCC 27 4. Nar Bahadur Bhandari and Ors. vs. State of Sikkim and Ors. (1998) 5 SCC 39 5. State of Punjab vs. Mohar Singh [1955 ]1SCR 893 6. Zile Singh vs. State of Haryana and Ors. (2004) 8 SCC 1 7. Yogendra Kumar Jaiswal and Ors. vs. State of Bihar and Ors. (2016 )3SCC 183 8. Titaghur Paper Mills Co. Ltd. and Ors. vs. State of Orissa and Ors. (1983 )2SCC 433 9. Thansingh Nathmal and Ors. vs. A. Mazid [1964 ]6SCR 654 (38 of 160) [CW-2915/2019] 10. State of H.P. and Ors. vs. Gujarat Ambuja Cement Ltd. and Ors. AIR2005SC3936 11. Commissioner of Income Tax and Ors. vs. Chhabil Dass Agarwal (2014 )1SCC 603 12. Harbanslal Sahnia and Ors. vs. Indian Oil Corpn. Ltd. and Ors. (2003) 2 SCC 107 13. Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors. (1998 )8 SCC 1 14. Vodafone International Holdings B.V. vs. Union of India (UOI) and Ors. (2009) 321 CTR 617 (SC) 15. Management of Express Newspapers Ltd. vs. Workers and Staff Employed under it and Ors. (1963) 3 SCR 540 16. Raghuvinder Singh Vs Dy. Commissioner Of Income Tax, (Benami Transaction) And Initiating Officer Under Prevention Of Benami Transaction Act 2016, S.B. Civil Writs No. 18701/2018 decided on 27/08/2018 Rajasthan High Court, Jaipur 17. S.B. Civil Writ Petition No. 2426 / 2018 Great Pacific General Trading Company (Limited Liability Partnership), Vs. Union of India, Through Secretary, Ministry of Finance, Department of Revenue, Decided on 27/02/2018 Rajasthan High Court, Jodhpur. same judgement was challenged in D.B. Spl. Appl. Writ No. 1315/2018 , decided on 22/10/2018. 18. MP-531-2017,decided on 09-01-2018, Dheeru Gond Vs. Union of India, High Court of Madeya Pradesh 19. CIT, New Delhi Vs. Ram Kishan Dass 2019 (5) SCALE 312 (39 of 160) [CW-2915/2019] 20. Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. (2018) 3 SCC 85 21. R. Rajgopal Reddy (Dead) by L.Rs. And Ors. Vs. Padmini Chandrasekhara (Dead) by L.Rs. (1995) 2 SCC 630 22. WA-704-2017, Kailash Assudani vs Commissioner Of Income Tax decided on 16 August, 2017 23. His Highness Maharaja Pratap Singh Vs. Maharani Sajojani Devi and ors. :1994 supp (1) SCC 734 24. Kapur Chand Pokhraj Vs. State of Bombay: AIR 1958 SC 993 25. Canbank Financial Services Ltd. vs. Custodian and Ors. (2004) 8 SCC 355 18. Heard learned counsel for parties and with their assistance perused materials available on record as well as gave my thoughtful consideration to rival submissions at bar and opinions referred to and relied upon. 19. Considering entire factual matrix, materials available on record and pleadings of parties, in above noted writ applications in totality, this court concluded to deal with larger question of retrospective applicability of Benami Amendment Act, 2016, consented by counsel for parties. Thus, question framed for determination, in substance, is: Whether provisions of Benami Amendment Act, 2016, shall be applicable retrospectively or not? 20. At very outset, it will be in fitness of things to deal with preliminary objection raised by learned senior counsel, appearing on behalf of respondents as to (40 of 160) [CW-2915/2019] maintainability of writ applications in view of scheme of Benami Amendment Act, 2016, and in view of opinion of Supreme Court in case of Vodafone International Holdings B.V. (supra). glance of opinion referred to and relied upon would reflect that Supreme Court while relying upon earlier opinion in case of Management of Express Newspapers Ltd. vs. Workers and Staff Employed under it and Ors.: AIR 1963 SC 569; observed that normally, questions of facts, though they may be jurisdictional facts, decision of which depends upon appreciation of evidence, should be left to be tried by Special Tribunals constituted for that purpose. Supreme Court in no uncertain terms, in same opinion, observed that it did not lay down any fixed or inflexible rule; whether or not even preliminary facts should be tried by High Court in writ petition, for same would depend upon facts and circumstances of each case and upon nature of preliminary issue raised between parties. 21. factual matrix of matters at hand, is entirely different and distinguishable, wherein fact that alleged benami transactions, involved herein, are of date prior to seizure and search conducted by respondent-department, and also, of date provisions of Benami Amendment Act of 2016, brought into force i.e. 1 st November, 2016. Hence, question in instant batch of writ applications for determination and adjudication, as to retrospective application of amended provisions introduced vide Benami Amendment Act of 2016, amending Prohibition of Benami Transactions Act, 1988; is pure question of law. Thus, there is no factual matrix which (41 of 160) [CW-2915/2019] requires evidence and consequent appreciation and determination thereon, in view of undisputed statement as to alleged benami transactions, which happens to be of dates precedent to enactment of Benami Amendment Act of 2016. 22. It is also not in dispute that rules in exercise of powers conferred by virtue of Section 68 of Benami Amendment Act of 2016, have been notified on 25th October, 2016, even before substantive section 68 of Benami Amendment Act of 2016, was made effective for which date appointed is 1 st November, 2016. 23. In case of Whirlpool Corporation (supra), Apex Court of land held thus: 13. Learned counsel for appellant has contended that since suo motu action Under Section 56(4) could be taken only by High Court and not by Registrar, notice issued to appellant was wholly without jurisdiction and, therefore, writ petition even at that stage was maintainable. appellant, in these circumstances, was not obliged to wait for Registrar to complete proceedings as any further order passed by Registrar would also have been without jurisdiction. 14. power to issue prerogative writs under Article 226 of Constitution is plenary in nature and is not limited by any other provision of Constitution This power can be exercised by High Court not only for issuing writs in nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for enforcement of any of Fundamental Rights contained in Part III of Constitution but also for "any other purpose". 15. Under Article 226 of Constitution, High Court, having regard to facts of case, has discretion to entertain or not to entertain writ petition. But High Court has imposed upon itself certain restrictions one of which is that if effective and efficacious remedy is available, High Court (42 of 160) [CW-2915/2019] would not normally exercise its jurisdiction. But alternative remedy has been consistently held by this court not to operate as bar in at least three contingencies, namely, where Writ Petition has been filed for enforcement of any of Fundamental rights or where there has been violation of principle of natural justice or where order or proceedings are wholly without jurisdiction or vires of Act is challenged.There is plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of evolutionary era of constitutional law as they still hold field. 20. Much water has since flown beneath bridge, but there has been no corrosive effect on these decisions which though old, continue to hold field with result that law as to jurisdiction of High Court in entertaining Writ Petition under Article 226 of Constitution, in spite of alternative statutory remedies, is not affected, specially in case where authority against whom Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, High Court was not justified in dismissing Writ Petition at initial stage without examining contention that show cause notice issued to appellant was wholly without jurisdiction and that Registrar, in circumstances of case, was not justified in acting as "TRIBUNAL". 24. glance of observations of Apex Court of land, as extracted herein-above, would reflect that factual matrix of matters at hand, is entirely different and distinguishable from factual matrix of Vodafone International Holdings B.V. (supra), that fell for consideration of Supreme Court. Hence, opinion referred to and relied upon is of no help to respondents in support of preliminary objection as to maintainability of writ applications under Article 226 of Constitution. (43 of 160) [CW-2915/2019] 25. In case of Calcutta Discount Company Limited (supra), Constitution Bench of Apex Court of land while examining rejection order on writ application under Article 226 of Constitution of India, in backdrop of notices issued under Section 34 of Indian Income Tax Act, 1922, wherein Income Tax Officer called upon Company to submit fresh returns of its total income; in no uncertain terms observed that pretended notice was issued without existence of necessary conditions precedent, which confers jurisdiction under section 34; and therefore, aggrieved party approaching court at earliest opportunity, could not be denied relief for existence of such alternative remedy is not however always sufficient reason for refusing party quick relief by writ or order prohibiting authority acting without jurisdiction from continuing such action. At this juncture, it will relevant to take note of text of opinion aforesaid, which reads thus: 1. This appeal is against appellate decision of Bench of Calcutta High Court by which in reversal of order made by Trial Judge Bench rejected present appellant's application under Article 226 of Constitution. appellant is private limited company incorporated under Indian Company's Act and has its registered office in Calcutta. It was assessed to income-tax for assessment years, 1942-43, 1943-44 and 1944-45 by three separate orders dated January 26, 1944, February 12, 1944, and February 15, 1945, respectively. These assessments were made under section 23(3) of Indian Income-tax Act upon returns filed by it accompanied by statements of account. first two assessments were made by Mr. L. D. Rozario then Income-tax Officer had last one by Mr. K. D. Banerjee. taxes assessed were duly paid up. On March 28, 1951, three notices purporting to be under section 34 of Indian Income-tax Act, 1922, were issued by Income-tax Officer calling upon company to submit fresh returns of its total income and (44 of 160) [CW-2915/2019] total world income assessable for three accounting years relating to three assessment years, 1942-43 1943-44 and 1944-45. appellant company furnished returns in compliance with notices but on September 18, 1951, applied to High Court of Calcutta for issue under article 226 of Constitution of appropriate writs or orders directing Income-tax Officer not to proceed to assess it on basis of these notices. first ground on which this prayer was based was mentioned in petition in these terms: - "The said pretended notice was issued without existence of necessary conditions precedent which confers jurisdiction under section 34 aforementioned, whether before or after amendment in 1948." other ground urged was that amendment to section 34 of Income-tax Act in 1948 was not retrospective and that assessment for years 1942-43, 1943-44 and 1944-45 became barred long before March 1951. 2. Trial Judge held that first ground was not made out but being of opinion that amending Act of 1948 was not retrospective, he held that notices issued were without jurisdiction. Accordingly he made order prohibiting Income-tax Officer from continuing assessment proceedings on basis of impugned notices. 3. learned Judges who heard appeal agreed with Trial Judge that first ground had not been made out. They held however that in consequence of amendment of section 34 in 1948 objection on ground of limitation must also fail. point of constitutional law which appears to have been raised before appeal court was also rejected. appeal was allowed and company's application under article 226 was dismissed with costs. 6. To confer jurisdiction under this section to issue notice in respect of assessments beyond period of four years, but within period of eight years, from end of relevant year two conditions have therefore to be satisfied. first is that Income-tax Officer must have reason to believe that income, profits or gains chargeable to income-tax have been under- assessed. second is that he must have also reason to believe that such "under assessment" has occurred (45 of 160) [CW-2915/2019] by reason of either (i) omission or failure on part of assessee to make return of his income under section 22, or (ii) omission or failure on part of assessee to disclose fully and truly and all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before Income-tax Officer could have jurisdiction to issue notice for assessment or reassessment beyond period of four years but within period of eight years, from end of year in question. 24. We are therefore bound to hold that conditions precedent to exercise of jurisdiction under section 34 of Income-tax Act did not exist and Income- tax Officer had therefore no jurisdiction to issue impugned notices under section 34 in respect of years 1942-43, 1943-44 and 1944-45 after expiry of four years. 25. Mr. Sastri argued that question whether Income-tax Officer had reason to believe that under- assessment had occurred "by reason of non-disclosure of material facts" should not be investigated by courts in application under article 226. Learned Counsel seems to suggest that as soon as Income- tax Officer has reason to believe that there has been under-assessment in any year he has jurisdiction to start proceedings under section 34 by issuing notice provided 8 years have not elapsed from end of year in question, but whether notices should have been issued within period of 4 years or not is only question of limitation which could and should properly be raised in assessment proceedings. It is wholly incorrect however to suppose that this is question of limitation only not touching question of jurisdiction. scheme of law clearly is that where Income- tax Officer has reason to believe that under assessment has resulted from non-disclosure he shall have jurisdiction to start proceedings for re-assessment within period of 8 years; and where he has reason to believe that under assessment has resulted from other causes he shall have jurisdiction to start proceedings for reassessment within 4 years. Both conditions, (i) Income-tax Officer having reason to believe that there has been under assessment and (ii) his having reason to believe that such under assessment has resulted from non-disclosure of material (46 of 160) [CW-2915/2019] facts, must co-exist before Income-tax Officer has jurisdiction to start proceedings after expiry of 4 years. argument that Court ought not to investigate existence of one of these conditions, viz., that Income-tax Officer has reason to believe that under assessment has resulted from non-disclosure of material facts cannot therefore be accepted. 26. Mr. Sastri next pointed out that at stage when Income-tax Officer issued notices he was not acting judicially or quasi-judicially and so writ of certiorari or prohibition cannot issue. It is well settled however that though writ of prohibition or certiorari will not issue against executive authority, High Courts have power to issue in fit case order prohibiting executive authority from acting without jurisdiction. Where such action of executive authority from acting without jurisdiction subjects or is likely to subject person to lengthy proceedings and unnecessary harassment, High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. 27. Mr. Sastri mentioned more than once fact that company would have sufficient opportunity to raise this question, viz., whether Income-tax Officer had reason to believe that under assessment had resulted from non-disclosure of material facts, before Income-tax Officer himself in assessment proceedings and, if unsuccessful there, before appellate Officer or appellate tribunal or in High Court under section 66(2) of Indian Income-tax Act. existence of such alternative remedy is not however always sufficient reason for refusing party quick relief by writ or order prohibiting authority acting without jurisdiction from continuing such action. 28. In present case company contends that conditions precedent for assumption of jurisdiction under section 34 were not satisfied and came to court at earliest opportunity. There is nothing in its conduct which would justify refusal of proper relief under article 226. When Constitution confers on High Courts power to give relief it becomes duty of courts to give such relief in fit cases and courts would be failing to perform their duty if relief is (47 of 160) [CW-2915/2019] refused without adequate reasons. In present case we can find no reason for which relief should be refused. 38. That Income Tax Officer has reason to believe that there was under assessment in material years was not challenged by appellant and in our opinion rightly. There are on record reports of Income Tax Officer in which belief is expressly set out. It also appears from assessment orders for years 1945-46 and 1946-47 that tax has been assessed on profits made by sale of shares by company in those years. 26. In Raza Textiles Ltd. (supra), while examining question as to whether order of Income Tax Officer, quasi judicial authority, is, subject to review by High Court under Article 226 of Constitution of India, was ruled in affirmative. At this stage, it will be profitable to take note of contents of paragraph 3 of opinion aforesaid, which reads thus: 3. Aggrieved by that order appellant went up in appeal to Appellate Assistant Commissioner. Appellate Assistant Commissioner rejected appeal on ground that same was not maintainable. He took view that appeal lay only under Section 30(1A). But before such appeal can be entertained appellant must satisfy two conditions, namely, (1) he had deducted tax due from non-resident in accordance with provisions of Sub-section 3(B) and (2) that he had paid sum deducted to Government. appellant having not complied with those two conditions, Appellate Assistant Commissioner held that appeal was incompetent. order of Appellate Assistant Commissioner was confirmed by- Tribunal. Thereafter appellant moved High Court under Article 226 of Constitution. That application came up before single Judge. single Judge after going into matter in detail came to conclusion that M/s. Nathirmal and Sons is not non-resident firm and that being so appellant was not required to act under Section 18(3B). He accordingly, set aside order impugned. revenue went up in appeal against order of (48 of 160) [CW-2915/2019] learned single Judge to Appellate Bench. That Bench allowed appeal with observations, "In present case question before Income-tax Officer, Rampur, was whether firm Nathirmal and Sons was non-resident or not. There was material before him on this question. He had jurisdiction to decide question either way. It cannot be said that officer assumed jurisdiction by wrong decision on this question of residence". Appellate Bench appears to have been under impression that Income-tax Officer was sole judge of fact whether firm in question was resident or non-resident. This conclusion, in our opinion, is wholly wrong. No authority, much less quasi-judicial authority, can confer jurisdiction on itself by deciding jurisdictional fact wrongly. question whether jurisdictional fact has been rightly decided or not is question that is open for examination by High Court in application for writ of certiorari. If High Court comes to conclusion, as learned single Judge has done in this case, that Income-tax Officer had clutched at jurisdiction by deciding jurisdictional fact erroneously, then assesses was entitled for writ of certiorari prayed for by him. It is incomprehensible to think that quasi- judicial authority like Income-tax Officer can erroneously decide jurisdictional fact and thereafter proceed to impose levy on citizen. In our opinion Appellate Bench is wholly wrong in opining that Income-tax Officer can "decide either way". 27. In case of Malayala Manorama Co. Ltd. (supra), Apex Court of land on survey of earlier opinions including Whirlpool Corporation (supra), repelling plea of availability of statutory alternative remedy while remanding matter back to High Court, observed thus: 5. assessee firm did not take recourse to statutory remedies available under Act but questioned very correctness and legality of issuance of notice as well as order passed by Assistant Commissioner before High Court of (49 of 160) [CW-2915/2019] Kerala at Ernakulam, by filing writ petition under Article 226 of Constitution of India. 6. This writ petition was contested by Department which filed detailed counter affidavit. It was specifically pleaded by Department that for availability of statutory alternative remedy as well as for other reasons and facts stated in reply, writ petition itself was not maintainable. Division Bench of High Court while considering this primary objection raised by Department before High Court, came to conclusion that as facts were not in dispute and questions raised were purely legal and are to be tested in view of judgment of this Court in case of Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer [(1994) 93 Sales Tax Cases 95 : (1994) 2 SCC 434], Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1] as well as judgment in case of State of H.P. & Ors. v. Gujarat Ambuja Cements Ltd. [(2005) 6 SCC 499 : (2005) 142 Sales Tax Cases 1], writ petition was maintainable. However, while laying emphasis that newspaper would not fall within expression `goods' under sub-section 3 of Section 5 of Act, High Court held that notice issued was proper as Form No. 18 which gives benefit of concessional rate of tax was factually not correct. While dismissing writ petition, however, Bench issued direction to assessing authority to examine whether imposition of penalty at double rate is justified in facts and circumstances of case, within period of two months from date of receipt of copy of judgment. It is this judgment of High Court which has been assailed in present appeal under Article 136 of Constitution of India. 9. Having heard learned senior counsel appearing for parties, we are of considered view that order under challenge requires interference by this Court. There is no dispute to fact that material amendments were carried out in provisions of Section 5(3) of Act with effect from 01.04.2002. existing 1st proviso to Section 5(3)(i) was deleted as well as expression `or uses same in manufacture of any goods which are not liable to tax in this Act' in Section 5(3)(i) was also deleted. Despite these amendments, as it appears from record (50 of 160) [CW-2915/2019] before Court, format of Form No. 18 has not been amended consequently. However, fact of thematter remains that High Court has not dwelt upon these legal issues which are core issues involved in present case. In our view, discussion on first issue would certainly have some bearing on alternative argument raised on behalf of appellant before us. Thus, it may not be possible for this Court to sustain finding recorded by High Court in that regard. Of course, we are not ruling out all possibilities of High Court arriving at same conclusion if it is of that view after examining amendments as well as submissions made on behalf of appellant with regard to its alternative submissions. In light of this discussion, we pass following order : (a) impugned order dated 2nd August, 2006 passed by High Court is hereby set aside. (b) matter is remanded to High Court for consideration afresh in accordance with law on both aforesaid submissions while leaving all contentions of assessee and Department open for year 2000- 2001, in relation to imposition of penalty under Section 45 (A) of Act. (c) legality and validity or otherwise of notice dated 16.01.2006 and 17.01.2006 shall be subject to final decision of High Court. 28. Applying principle deducible from opinions supra, to preliminary objections raised by learned senior counsel for respondents, as to maintainability of writ applications; merits rejection, and is, hereby rejected. 29. Indisputably, in all writ applications constituting batch; alleged benami transactions are of date preceding 1 st November, 2016. In some of matters, even prior to (51 of 160) [CW-2915/2019] commencement of unamended Benami Act of 1988, which came into effect on 5th September, 1988 whereas Sections 3, 5 and 8 of unamended Benami Act, 1988, were deemed to have come into force on 19th day of May, 1988 i.e with retrospective effect. Benami Amendment Act, 2016 (43 of 2016), has been made applicable from date appointed by Central Government vide notification dated 25 th October, 2016. And appointed date determined, is, 1st November, 2016, as date on which provisions of Benami Amendment Act, 2016, shall come into force. 30. comparative consideration of Section 2 of Benami Act, 1988 and Benami Amendment Act, 2016, would reflect that definitions under unamended Act contains sub-section (1) to (4) only, whereas amending Benami Amendment Act, 2016, contains sub-section (1) to (31), defining various terms and phrases elaborately. Learned counsel for parties referring to aims, objects and scope of amendment in Principal Act of 1988 vide Benami Transactions (Prohibition) Amendment Act, 2016, contended that while earlier unamended Benami Act, 1988, consisted of only 9 Sections, Benami Amendment Act, 2016, consisted of as many as 72 Sections. 31. However, unamended Benami Act of 1988, for first time contemplated prohibition of benami transactions vide Section 3. Section 4 prohibited right to recover property held benami. Section 5 contemplated properties held benami subject to acquisition by such authority in such manner and following such procedure as may be prescribed; without payment of any amount for acquisition of any property that was held benami. (52 of 160) [CW-2915/2019] unamended Benami Act, 1988, vested Central Government with power to frame rules for carrying out purpose of Benami Act, 1988, by notification in official gazette. Since no rules were framed by Central Government in exercise of powers under Section 8 of unamended Benami Act, 1988, for acquisition of properties held benami; no property was acquired despite unamended Benami Act of 1988, remained in force all along until amnedments interoduced in year 2016. Admittedly, unamended Benami Act, of 1988, did not contain any specific provision for vesting of benami property with Central Government. Furthermore, there was no provision for appellate mechanism against action taken by authorities under unamended Benami Act, 1988 while barring jurisdiction of Civil Court. No powers with authorities concerned for its implementation. However, in order to deal with benami transactions involving large amounts of unaccounted black money, mechanism has been introduced to make operative intention and object of unamended Benami Act of 1988 by Benami Amendment Act, 2016; is plea in support of its retrospective applicability of amended Benami Act, 1988 through Benami Amendment Act, 2016. 32. In order to appreciate rival contentions of parties on question for determination, it will be profitable to take note of relevant provisions of unamended Benami Act of 1988 so also relevant provisions of Benami Amendment Act, 2016 along with text of Article 20 of Constitution of India, which reads thus: Article 20 of Constitution:- (53 of 160) [CW-2915/2019] 20. Protection in respect of conviction for offences: (1) No person shall be convicted of any offence except for violation of law in force at time of commission of act charged as offence, nor be subjected to penalty greater than that which might have been inflicted under law in force at time of commission of offence (2) No person shall be prosecuted and punished for same offence more than once (3)No person accused of any offence shall be compelled to be witness against himself. Unamended Benami Transactions (Prohibition) Act, 1988 1. Short title, extent and commencement- (1) This Act may be called Benami Transactions (Prohibition) Act, 1988. (2) It extends to whole of India except State of Jammu and Kashmir. (3) provisions of sections 3, 5 and 8 shall come into force at once, and remaining provisions of this Act shall be deemed to have come into force on 19th day of May, 1988. 2. Definitions- In this Act, unless context otherwise requires,-- (a) benami transaction means any transaction in which property is transferred to one person for consideration paid or provided by another person; (b) prescribed means prescribed by rules made under this Act; (c) property means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property. 3. Prohibition of benami transactions- (1) No person shall enter into any benami transaction. (54 of 160) [CW-2915/2019] (2) Nothing in sub-section (1) shall apply to purchase of property by any person in name of his wife or unmarried daughter and it shall be presumed, unless contrary is proved, that said property had been purchased for benefit of wife of unmarried daughter. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in Code of Criminal Procedure, 1973, offence under this section shall be non-cognizable and bailable. 4. Prohibition of right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against person in whose name property is held or against any other person shall lie by or on behalf of person claiming to be real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against person in whose name property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of person claiming to be real owner of such property. (3) Nothing in this section shall apply,-- (a) where person in whose name property is held is coparcener in Hindu undivided family and property is held for benefit of coparceners in family; or (b) where person in whose name property is held is trustee or other person standing in fiduciary capacity, and property is held for benefit of another person for whom he is trustee or towards whom he stands in such capacity. 5. Property of benami liable to acquisition- (1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure as may be prescribed. (55 of 160) [CW-2915/2019] (2) For removal of doubts, it is hereby declared that no amount shall be payable for acquisition of any property under sub-section (1). 8. Power to make rules- (1) Central Government may, by notification in Official Gazette, make rules for carrying out purposes of this Act. (2) In particular, and without prejudice to generality of foregoing power, such rules may provide for all or any of following matters, namely:-- (a) authority competent to acquire properties under section 5; (b) manner in which, and procedure to be followed for, acquisition of properties under section 5; (c) any other matter which is required to be, or may be, prescribed. (3) Every rule made under this Act shall be laid, so soon as may be after it is made, before each House of Parliament, while it is in session for total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before expiry of session immediately following session or successive sessions aforesaid, both Houses agree in making any modification in rule or both Houses agree that rule should not be made, rule shall thereafter have effect only in such modified form or be of no effect, as case may be; so, however, that any such modification or annulment shall be without prejudice to validity of anything previously done under that rule. Benami Transactions (Prohibition) Amendment Act, 2016. (1) This Act may be called Benami Transactions (Prohibition) Amendment Act, 2016. (2) It shall come into force on such date as Central Government may, by notification in Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and any (56 of 160) [CW-2915/2019] reference in any such provision to commencement of this Act shall be construed as reference to coming into force of that provision. (8) "benami property" means any property which is subject matter of benami transaction and also includes proceeds from such property; (9) "benami transaction" means,- (A) transaction or arrangement- (a) where property is transferred to, or is held by, person, and consideration for such property has been provided, or paid by, another person; and (b) property is held for immediate or future benefit, direct or indirect, of person who has provided consideration, except when property is held by- (i) Karta, or member of Hindu undivided family, as case may be, and property is held for his benefit or benefit of other members in family and consideration for such property has been provided or paid out of known sources of Hindu undivided family; (ii) person standing in fiduciary capacity for benefit of another person towards whom he stands in such capacity and includes trustee, executor, partner, director of company, depository or participant as agent of depository under Depositories Act, 1996 (22 of 1996) and any other person as may be notified by Central Government for this purpose; (iii) any person being individual in name of his spouse or in name of any child of such individual and consideration for such property has been provided or paid out of known sources of individual; (iv) any person in name of his brother or sister or lineal ascendant or descendant, where names of brother or sister or lineal ascendant or descendant and individual appear as joint-owners in any document, and consideration for such property has been provided or paid out of known sources of individual; or (B) transaction or arrangement in respect of property carried out or made in fictitious name; or (57 of 160) [CW-2915/2019] (C) transaction or arrangement in respect of property where owner of property is not aware of, or, denies knowledge of, such ownership; (D) transaction or arrangement in respect of property where person providing consideration is not traceable or is fictitious; (19) "Initiating Officer" means Assistant Commissioner or Deputy Commissioner as defined in clauses (9A) and (19A) respectively of section 2 of Income-tax Act, 1961 (43 of 1961); In section 3 of principal Act,- (a) sub-section (2) shall be omitted; (b) sub-section (3) shall be renumbered as sub-section (2) thereof; (c) after sub-section (2) as so renumbered, following sub-section shall be inserted, namely:- "(3) Whoever enters into any benami transaction on and after date of commencement of Benami Transactions (Prohibition) Amendment Act, 2016, shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with provisions contained in Chapter VII."; 24. Notice and attachment of property involved in benami transaction (1) Where Initiating Officer, on basis of material in his possession, has reason to believe that any person is benamidar in respect of property, he may, after recording reasons in writing, issue notice to person to show cause within such time as may be specified in notice why property should not be treated as benami property. (2) Where notice under sub-section (1) specifies any property as being held by benamidar referred to in that sub-section, copy of notice shall also be issued to beneficial owner if his identity is known. (3) Where Initiating Officer is of opinion that person in possession of property held benami may alienate property during period specified in notice, he may, with previous approval of Approving Authority, by order in writing, attach provisionally property in manner as may be prescribed, for period not exceeding ninety days from date of issue of notice under sub-section (1). (58 of 160) [CW-2915/2019] (4) Initiating Officer, after making such inquires and calling for such reports or evidence as he deems fit and taking into account all relevant materials, shall, within period of ninety days from date of issue of notice under sub-section (1),- (a) where provisional attachment has been made under sub-section (3), - (i) pass order continuing provisional attachment of property with prior approval of Approving Authority, till passing of order by Adjudicating Authority under sub-section (3) of section 26; or (ii) revoke provisional attachment of property with prior approval of Approving Authority; (b) where provisional attachment has not been made under sub-section (3),- (i) pass order provisionally attaching property with prior approval of Approving Authority, till passing of order by Adjudicating Authority under sub-section (3) of section 26; or (ii) decide not to attach property as specified in notice, with prior approval of Approving Authority. (5) Where Initiating Officer passes order continuing provisional attachment of property under sub-clause (i) of clause (a) of sub-section (4) or passes order provisionally attaching property under sub-clause (i) of clause (b) of that sub-section, he shall, within fifteen days from date of attachment, draw up statement of case and refer it to Adjudicating Authority. 26. Adjudication of benami property (1) On receipt of reference under sub-section (5) of section 24, Adjudicating Authority shall issue notice, to furnish such documents, particulars or evidence as is considered necessary on date to be specified therein, on following persons, namely:- (a) person specified as benamidar therein; (b) any person referred to as beneficial owner therein or identified as such; (c) any interested party, including banking company; (d) any person who has made claim in respect of property: (59 of 160) [CW-2915/2019] Provided that Adjudicating Authority shall issue notice within period of thirty days from date on which reference has been received: Provided further that notice shall provide period of not less than thirty days to person to whom notice is issued to furnish information sought. (2) Where property is held jointly by more than one person, Adjudicating Authority shall make all endeavours to serve notice to all persons holding property: Provided that where notice is served on anyone of persons, service of notice shall not be invalid on ground that said notice was not served to all persons holding property. (3) Adjudicating Authority shall, after- (a) considering reply, if any, to notice issued under sub-section (1); (b) making or causing to be made such inquiries and calling for such reports or evidence as it deems fit; and (c) taking into account all relevant materials, provide opportunity of being heard to person specified as benamidar therein, Initiating Officer, and any other person who claims to be owner of property, and, thereafter, pass order- (i) holding property not to be benami property and revoking attachment order; or (ii) holding property to be benami property and confirming attachment order, in all other cases. (4) Where Adjudicating Authority is satisfied that some part of properties in respect of which reference has been made to him is benami property, but is not able to specifically identify such part, he shall record finding to best of his judgment as to which part of properties is held benami. (5) Where in course of proceedings before it, Adjudicating Authority has reason to believe that property, other than property referred to it by Initiating Officer is benami property, it shall provisionally attach property and property shall be deemed to be property referred to it on date of receipt of reference under sub-section (5) of section 24. (60 of 160) [CW-2915/2019] (6) Adjudicating Authority may, at any stage of proceedings, either on application of any party, or suo motu, strike out name of any party improperly joined or add name of any person whose presence before Adjudicating Authority may be necessary to enable him to adjudicate upon and settle all questions involved in reference. (7) No order under sub-section (3) shall be passed after expiry of one year from end of month in which reference under sub-section (5) of section 24 was received. (8) benamidar or any other person who claims to be owner of property may either appear in person or take assistance of authorised representative of his choice to present his case. Explanation.-For purposes of sub-section (8), authorised representative means person authorised in writing, being- (i) person related to benamidar or such other person in any manner, or person regularly employed by benamidar or such other person as case may be; or (ii) any officer of scheduled bank with which benamidar or such other person maintains account or has other regular dealings; or (iii) any legal practitioner who is entitled to practice in any civil court in India; or (iv) any person who has passed any accountancy examination recognised in this behalf by Board; or (v) any person who has acquired such educational qualifications as Board may prescribe for this purpose. 53. Penalty for benami transaction (1) Where any person enters into benami transaction in order to defeat provisions of any law or to avoid payment of statutory dues or to avoid payment to creditors, beneficial owner, benamidar and any other person who abets or induces any person to enter into benami transaction, shall be guilty of offence of benami transaction. (2) Whoever is found guilty of offence of benami transaction referred to in sub-section (1) shall be punishable with rigorous imprisonment for term (61 of 160) [CW-2915/2019] which shall not be less than one year, but which may extend to seven years and shall also be liable to fine which may extend to twenty-five per cent. of fair market value of property. 65. Transfer of pending cases (1) Every suit or proceeding in respect of benami transaction pending in any Court (other than High Court) or Tribunal or before any forum on date of commencement of this Act shall stand transferred to Adjudicating Authority or Appellate Tribunal, as case may be, having jurisdiction in matter. (2) Where any suit, or other proceeding stands transferred to Adjudicating Authority or Appellate Tribunal under sub-section (1),- (a) court, Tribunal or other forum shall, as soon as may be, after transfer, forward records of suit, or other proceeding to Adjudicating Authority or Appellate Tribunal, as case may be; (b) Adjudicating Authority may, on receipt of records, proceed to deal with suit, or other proceeding, so far as may be, in same manner as in case of reference made under sub-section (5) of section 24, from stage which was reached before transfer or from any earlier stage or de novo as Adjudicating Authority may deem fit. 68. Power to make rules (1) Central Government may, by notification, make rules for carrying out provisions of this Act. (2) In particular, and without prejudice to generality of foregoing power, such rules may provide for all or any of following matters, namely:- (a) manner of ascertaining fair market value under clause 16 of section 2; (b) manner of appointing Chairperson and Member of Adjudicating Authorities under sub- section (2) of section 9; (c) salaries and allowances payable to Chairperson and Members of Adjudicating Authority under sub-section (1) of section 13; (d) powers and functions of authorities under sub-section (2) of section 18; (e) other powers of authorities under clause (f) of sub-section (1) of section 19; (62 of 160) [CW-2915/2019] (f) form and manner of furnishing any information to authority under sub-section (2) of section 21; (g) manner of provisional attachment of property under sub-section (3) of section 24; (h) procedure for confiscation of benami property under second proviso to sub-section (1) of section 27; (i) manner and conditions to receive and manage property under sub-section (1) of section 28; (j) manner and conditions of disposal of property vested in Central Government under sub-section (3) of section 28; (k) salaries and allowances payable to and other terms and conditions of service of Chairperson and other Members of Appellate Tribunal under sub-section (1) of section 33; (l) manner of prescribing procedure for removal of Chairperson or Member under sub-section (4) of section 35; (m) salaries and allowances payable to and other terms and conditions of service of officers and employees of Appellate Tribunal under sub-section (3) of section 39; (n) any power of Appellate Tribunal under clause (i) of sub-section (2) of section 40; (o) form in which appeal shall be filed and fee for filing appeal under sub-section (1) of section 46; (p) any other matter which is to be, or may be, prescribed, or in respect of which provision is to be made, by rules. 71. Transitional provision Central Government may, by notification, provide that until Adjudicating Authorities are appointed and Appellate Tribunal is established under this Act, Adjudicating Authority appointed under sub-section (1) of section 6 of Money-Laundering Act, 2002 (15 of 2003) and Appellate Tribunal established under section 25 of that Act may discharge functions of Adjudicating Authority and Appellate Tribunal, respectively, under this Act.' (63 of 160) [CW-2915/2019] 33. From glance of notification dated 25th October, 2016, it is evident that Central Government, in exercise of powers conferred by Section 68 of Benami Amendment Act, 2016; has framed rules and made them effective w.e.f. 1 st November, 2016, i.e. date from which Benami Amendment Act, 2016, has been enacted. Thus, it is evident that Central Government exercised powers, to frame rules, conferred by virtue of Section 68, introduced vide Benami Amendment Act, 2016, which itself came into effect from appointed date i.e. 1st November, 2016. Hence, rules framed, in exercise of power under Section 68, have been framed and notified by notification dated 25 th October, 2016, even before amendement incorporating Section 68, was made operative that is w.e.f. 1 st November, 2016. Therefore, plea of petitioners as to rules having been framed contrary to and in absence of power available to Central Government under Section 68 of Benami Amendment Act, 2016, which was made operative and effective w.e.f. 1 st November, 2016; has substance. 34. Further, to understand true character and meaning of Benami Transactions, under English law and Indian Law; it will be relevant to take note of text of para 14 of Apex Court of land in case of Thakur Bhim Singh (dead) By Lrs and Ors. (supra), which reads thus: 14. Under English law, when real or personal property is purchased in name of stranger, resulting trust will be presumed in favour of person who is proved to have paid purchase money in character of purchaser. It is, however, open to transferee to rebut that presumption by showing that intention of person who contributed (64 of 160) [CW-2915/2019] purchase money was that transferee should himself acquire beneficial interest in property. There is, however, exception to above rule of presumption made by English law when person who gets legal title under conveyance is either child or wife of person who contributes purchase money or his grand child, whose father is dead. rule applicable in such cases is known as doctrine of advancement which requires court to presume that purchase is for benefit of person in whose favour legal title is transferred even though purchase money may have been contributed by father or husband or grandfather, as case may be, unless such presumption is rebutted by evidence showing that it was intention of person who paid purchase money that transferee should not become real owner of property in question. doctrine of advancement is not in vogue in India. counterpart of English law of resulting trust referred to above is Indian law of benami transactions. Two kinds of benami transactions are generally recognized in India. Where person buys property with his own money but in name of another person without any intention to benefit such other person, transaction is called benami. In that case, transferee holds property for benefit of person who has contributed purchase money, and he is real owner. second case which is loosely termed as benami transaction is case where person who is owner of property executes conveyance in favour of another without intention of transferring title to property thereunder. In this case, transferor continues to be real owner. difference between two kinds of benami transactions referred to above lies in fact that whereas in former case, there is operative transfer from transferor to transferee though transferee holds property for benefit of person who has contributed purchase money, in latter case, there is no operative transfer at all and title rests with transferor notwithstanding execution of conveyance. One common feature, however, in both these cases is that real title is divorced from ostensible title and they are vested in different persons. question whether transaction is benami transaction or not mainly depends upon intention of person who has contributed purchase money in former case and (65 of 160) [CW-2915/2019] upon intention of person who has executed conveyance in latter case. principle underlying former case is also statutorily recognized in Section 82 of Indian Trusts Act, 1882 which provides that where property is transferred to one person for consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for benefit of transferee, transferee must hold property for benefit of person paying or providing consideration. This view is in accord with following observations made by this Court in Meenakshi Mills. Madurai v. Commissioner of Income-Tax, Madras MANU/SC/0044/1956 : [1956]1SCR691 .: In this connection, it is necessary to note that word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies transaction which is real, as for example when sells properties to B but sale deed mentions X as purchaser. Here sale itself is genuine, but real purchaser is B, X being his benamidar. This is class of transactions which is usually termed as benami. But word 'benami' is also occasionally used, perhaps not quite accurately, to refer to sham transaction, as for example, when purports to sell his property to B without intending that his title should cease or pass to B. fundamental difference between these two classes of transactions is that whereas in former there is operative transfer resulting in vesting of title in transferee, in latter there is none such, transferor continuing to retain title notwithstanding execution of transfer deed. It is only in former class of cases that it would be necessary, when dispute arises as to whether person named in deed is real transferee or B, to enquire into question as to who paid consideration for transfer, X or B. But in latter class of cases, when question is whether transfer is genuine or sham, point for decision would be, not who paid consideration but whether any consideration was paid. 35. In case of Calcutta Discount Company Limited (supra), Supreme Court, held thus: (66 of 160) [CW-2915/2019] 6. To confer jurisdiction under this section to issue notice in respect of assessments beyond period of four years, but within period of eight years, from end of relevant year two conditions have therefore to be satisfied. first is that Income-tax Officer must have reason to believe that income, profits or gains chargeable to income-tax have been under- assessed. second is that he must have also reason to believe that such "under assessment" has occurred by reason of either (i) omission or failure on part of assessee to make return of his income under section 22, or (ii) omission or failure on part of assessee to disclose fully and truly and all material facts necessary for his assessment for that year. Both these conditions are conditions precedent to be satisfied before Income-tax Officer could have jurisdiction to issue notice for assessment or reassessment beyond period of four years but within period of eight years, from end of year in question. 24. We are therefore bound to hold that conditions precedent to exercise of jurisdiction under section 34 of Income-tax Act did not exist and Income- tax Officer had therefore no jurisdiction to issue impugned notices under section 34 in respect of years 1942-43, 1943-44 and 1944-45 after expiry of four years. 25. Mr. Sastri argued that question whether Income-tax Officer had reason to believe that under- assessment had occurred "by reason of non-disclosure of material facts" should not be investigated by courts in application under article 226. Learned Counsel seems to suggest that as soon as Income- tax Officer has reason to believe that there has been under-assessment in any year he has jurisdiction to start proceedings under section 34 by issuing notice provided 8 years have not elapsed from end of year in question, but whether notices should have been issued within period of 4 years or not is only question of limitation which could and should properly be raised in assessment proceedings. It is wholly incorrect however to suppose that this is question of limitation only not touching question of jurisdiction. scheme of law clearly is that where Income-tax Officer has reason to believe that under assessment has resulted from non-disclosure he shall (67 of 160) [CW-2915/2019] have jurisdiction to start proceedings for re-assessment within period of 8 years; and where he has reason to believe that under assessment has resulted from other causes he shall have jurisdiction to start proceedings for reassessment within 4 years. Both conditions, (i) Income-tax Officer having reason to believe that there has been under assessment and (ii) his having reason to believe that such under assessment has resulted from non-disclosure of material facts, must co-exist before Income-tax Officer has jurisdiction to start proceedings after expiry of 4 years. argument that Court ought not to investigate existence of one of these conditions, viz., that Income-tax Officer has reason to believe that under assessment has resulted from non-disclosure of material facts cannot therefore be accepted. 26. Mr. Sastri next pointed out that at stage when Income-tax Officer issued notices he was not acting judicially or quasi-judicially and so writ of certiorari or prohibition cannot issue. It is well settled however that though writ of prohibition or certiorari will not issue against executive authority, High Courts have power to issue in fit case order prohibiting executive authority from acting without jurisdiction. Where such action of executive authority from acting without jurisdiction subjects or is likely to subject person to lengthy proceedings and unnecessary harassment, High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. 27. Mr. Sastri mentioned more than once fact that company would have sufficient opportunity to raise this question, viz., whether Income-tax Officer had reason to believe that under assessment had resulted from non-disclosure of material facts, before Income-tax Officer himself in assessment proceedings and, if unsuccessful there, before appellate Officer or appellate tribunal or in High Court under section 66(2) of Indian Income-tax Act. existence of such alternative remedy is not however always sufficient reason for refusing party quick relief by writ or order prohibiting authority acting without jurisdiction from continuing such action. 28. In present case company contends that conditions precedent for assumption of jurisdiction (68 of 160) [CW-2915/2019] under section 34 were not satisfied and came to court at earliest opportunity. There is nothing in its conduct which would justify refusal of proper relief under article 226. When Constitution confers on High Courts power to give relief it becomes duty of courts to give such relief in fit cases and courts would be failing to perform their duty if relief is refused without adequate reasons. In present case we can find no reason for which relief should be refused. 29. We have therefore come to conclusion that company was entitled to order directing Income- tax Officer not to take any action on basis of three impugned notices. 30. We are informed that assessment orders were in fact made on March 25, 1952, by Income-tax Officer in proceedings started on basis of these impugned notices. This was done with permission of learned Judge before whom petition under article 226 was pending, on distinct understanding that these orders would be without prejudice to contentions of parties on several questions raised in petition and without prejudice to orders that may ultimately be passed by Court. fact that assessment orders have already been made does not therefore affect company's right to obtain relief under article 226. In view however of fact that assessment orders have already been made we think it proper that in addition to order directing Income-tax Officer not to take any action on basis of impugned notices further order quashing assessment made be also issued. 36. In case of Commissioner of Income Tax vs. Vatika Township Private Limited (supra), Supreme Court, observed thus: 27. legislation, be it statutory Act or statutory Rule or statutory Notification, may physically consists of words printed on papers. However, conceptually it is great deal more than ordinary prose. There is special peculiarity in mode of verbal communication by legislation. legislation is not just series of (69 of 160) [CW-2915/2019] statements, such as one finds in work of fiction/non fiction or even in judgment of court of law. There is technique required to draft legislation as well as to understand legislation. Former technique is known as legislative drafting and latter one is to be found in various principles of 'Interpretation of Statutes'. Vis- - vis ordinary prose, legislation differs in its provenance, lay-out and features as also in implication as to its meaning that arise by presumptions as to intent of maker thereof. 28. Of various rules guiding how legislation has to be interpreted, one established rule is that unless contrary intention appears, legislation is presumed not to be intended to have retrospective operation. idea behind rule is that current law should govern current activities. Law passed today cannot apply to events of past. If we do something today, we do it keeping in view law of today and in force and not tomorrow's backward adjustment of it. Our belief in nature of law is founded on bed rock that every human being is entitled to arrange his affairs by relying on existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre (1870) LR 6 QB 1, retrospective legislation is contrary to general principle that legislation by which conduct of mankind is to be regulated when introduced for first time to deal with future acts ought not to change character of past transactions carried on upon faith of then existing law. 29. obvious basis of principle against retrospectivity is principle of 'fairness', which must be basis of every legal rule as was observed in decision reported in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. (1994) 1 AC (70 of 160) [CW-2915/2019] 486. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach new disability have to be treated as prospective unless legislative intent is clearly to give enactment retrospective effect; unless legislation is for purpose of supplying obvious omission in former legislation or to explain former legislation. We need not note cornucopia of case law available on subject because aforesaid legal position clearly emerges from various decisions and this legal position was conceded by counsel for parties. In any case, we shall refer to few judgments containing this dicta, little later. 32. Let us sharpen discussion little more. We may note that under certain circumstances, particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labeled as "declaratory statutes". circumstances under which provision can be termed as "declaratory statutes" is explained by Justice G.P. Singh in following manner: Declaratory statutes presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES and approved by Supreme Court: "For modern purposes declaratory Act may be defined as Act to remove doubts existing as to common law, or meaning or effect of any statute. Such Acts are usually held to be retrospective. usual reason for passing declaratory Act is to set aside what Parliament deems to have been judicial error, whether in statement of common law or in interpretation of statutes. Usually, if not invariably, such Act contains preamble, and also word 'declared' as well as (71 of 160) [CW-2915/2019] word 'enacted'. But use of words 'it is declared' is not conclusive that Act is declaratory for these words may, at times, be used to introduced new rules of law and Act in latter case will only be amending law and will not necessarily be retrospective. In determining, therefore, nature of Act, regard must be had to substance rather than to form. If new Act is 'to explain' earlier Act, it would be without object unless construed retrospective. explanatory Act is generally passed to supply obvious omission or to clear up doubts as to meaning of previous Act. It is well settled that if statute is curative or merely declaratory of previous law retrospective operation is generally intended. language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In absence of clear words indicating that amending Act is declaratory, it would not be so construed when pre-amended provision was clear and unambiguous. amending Act may be purely clarificatory to clear meaning of provision of principal Act which was already implicit. clarificatory amendment of this nature will have retrospective effect and, therefore, if principal Act was existing law which Constitution came into force, amending Act also will be part of existing law. above summing up is factually based on judgments of this Court as well as English decisions. 37. When we examine insertion of proviso in Section 113 of Act, keeping in view aforesaid principles, our irresistible conclusion is that intention of legislature was to make it prospective in nature. This proviso cannot be treated as declaratory/statutory or curative in nature. (72 of 160) [CW-2915/2019] 42.2 Thus, it was conscious decision of legislature, even when legislature knew implication thereof and took note of reasons which led to insertion of proviso, that amendment is to operate prospectively. Learned Counsel appearing for Assessees sagaciously contrasted aforesaid stipulation while effecting amendment in Section 113 of Act, with various other provisions not only in same Finance Act but Finance Acts pertaining to other years where legislature specifically provided such amendment to be either retrospective or clarificatory. In so far as amendment to Section 113 is concerned, there is no such language used and on contrary, specific stipulation is added making provision effective from 1st June, 2002. 44. Finance Act, 2003, again makes position clear that surcharge in respect of block assessment of undisclosed income was made prospective. Such stipulation is contained in second proviso to Sub- section (3) of Section 2 of Finance Act, 2003. This proviso reads as under: Provided further that amount of income- tax computed in accordance with provisions of Section 113 shall be increased by surcharge for purposes of Union as provided in Paragraph A, B, C, D or E, as case may be, of Part III of First Schedule of Finance Act of year in which search is initiated Under Section 132 or requisition is made Under Section 132A of income-tax Act. Addition of this proviso in Finance Act, 2003 further makes it clear that such provision was necessary to provide for surcharge in cases of block assessments and thereby making it prospective in nature. charge in respect of surcharge, having been created for (73 of 160) [CW-2915/2019] first time by insertion of proviso to Section 113, is clearly substantive provision and hence is to be construed prospective in operation. amendment neither purports to be merely clarificatory nor is there any material to suggest that it was intended by Parliament. Furthermore, amendment made to taxing statute can be said to be intended to remove 'hardships' only of Assessee, not of Department. On contrary, imposing retrospective levy on Assessee would have caused undue hardship and for that reason Parliament specifically chose to make proviso effective from 1.6.2002. 37. In case of Commissioner of Prakash and Ors. vs. Phulavati and Ors. (supra), Apex Court of land, held thus: 17. text of amendment itself clearly provides that right conferred on 'daughter of coparcener' is 'on and from commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after amendment for its applicability. In view of plain language of statute, there is no scope for different interpretation than one suggested by text of amendment. amendment of substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27. In present case, there is neither any express provision for giving retrospective effect to amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. intent and effect of Amendment will be considered little later. On this finding, view of High Court cannot be sustained. 18. Contention of Respondents that Amendment should be read as retrospective being piece of social legislation cannot be accepted. Even social legislation cannot be given retrospective effect (74 of 160) [CW-2915/2019] unless so provided for or so intended by legislature. In present case, legislature has expressly made Amendment applicable on and from its commencement and only if death of coparcener in question is after Amendment. Thus, no other interpretation is possible in view of express language of statute. proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to inference that daughter could be coparcener prior to commencement of Act. proviso only means that transactions not covered thereby will not affect extent of coparcenary property which may be available when main provision is applicable. Similarly, Explanation has to be read harmoniously with substantive provision of Section 6(5) by being limited to transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under Sub- section 5 or under Explanation. 38. In case of Sukhdev Singh vs. State of Haryana: (supra), Supreme Court, observed thus: Another Bench of this Court in case of Jawahar Singh @ Bhagat Ji. v. State of GNCT of Delhi (2009) 6 SCC 490], while dealing with amendments of Section 21 of NDPS Act, Court took view that amendments made by Act 9 of 2001 could not be given retrospective effect as if it was so given, it would warrant retrial which is not object of Act. Court held as under: 9. It is now beyond any doubt or dispute that quantum of punishment to be inflicted on accused upon recording judgment of conviction would be as per law which was prevailing at relevant time. As on date of commission of offence and/or date of conviction, there was no distinction between small quantity and commercial quantity, question of infliction of lesser sentence by reason of provisions of amending Act, in our considered opinion, would not arise. 10. It is also well-settled principle of law that substantive provision unless (75 of 160) [CW-2915/2019] specifically provided for or otherwise intended by Parliament should be held to have prospective operation. One of facets of rule of law is also that all statutes should be presumed to have prospective operation only. 18. No law can be interpreted so as to frustrate very basic rule of law. It is settled principle of interpretation of criminal jurisprudence that provisions have to be strictly construed and cannot be given retrospective effect unless legislative intent and expression is clear beyond ambiguity. amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because law has changed. Such approach would be contrary to doctrine of finality as well as avoidance of delay in conclusion of criminal trial. 39. In case of J.S. Yadav vs. State of U.P. and Ors. (supra), Supreme Court held thus: 24. Legislature is competent to unilaterally alter service conditions of employee and that can be done with retrospective effect also, but intention of Legislature to apply amended provisions with retrospective effect must be evident from Amendment Act itself expressly or by necessary implication. aforesaid power of Legislature is qualified further that such unilateral alteration of service conditions should be in conformity with legal and constitutional provisions. Roshan Lal Tandon v. Union of India and Ors. AIR 1967 SC 1889; State of Mysore v. Krishna Murthy and Ors. AIR 1973 SC 1146; Raj Kumar v. Union of India and Ors. AIR 1975 SC 1116; Ex-Capt. K.C. Arora and Anr. v. State of Haryana and Ors. (1984) 3 SCC 281; and State of Gujarat and Anr. v. Raman Lal Keshav Lal Soni and Ors. AIR 1984 SC 161. 25. In Union of India and Ors. v. Tushar Ranjan Mohanty and Ors. (1994) 5 SCC 450, this Court declared amendment with retrospective operation as ultra vires as it takes away vested rights of Petitioners therein and thus, was unreasonable, arbitrary and violative of Articles 14 and 16 of Constitution. While deciding said case, this Court (76 of 160) [CW-2915/2019] placed very heavy reliance on judgment in P.D. Aggarwal and Ors. v. State of U.P. and Ors.AIR 1987 SC 1676, wherein this Court has held as under: 18. ...the Government has power to make retrospective amendments to Rules but if Rules purport to take away vested rights and are arbitrary and not reasonable then such retrospective amendments are subject to judicial scrutiny if they have infringed Articles 14 and 16 of Constitution. 40. In case of Shakti Tubes Ltd. vs. State of Bihar and Ors.:(supra), Apex Court of land observed thus: 24. Generally, Act should always be regarded as prospective in nature unless legislature has clearly intended provisions of said Act to be made applicable with retrospective effect. 13. It is cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. aforesaid rule in general is applicable where object of statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in statute sufficient to show intention of legislature to affect existing rights, it is deemed to be prospective only -- "nova Constitution futuris formam imponere debet non praeteritis" -- new law ought to regulate what is to follow, not past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438.). It is not necessary that express provision be made to make statute retrospective and presumption against retrospectivity may be rebutted by necessary implication especially in case where new law is made to cure acknowledged evil for benefit of community as whole (ibid., p. 440). (77 of 160) [CW-2915/2019] 25. There is no dispute with regard to fact that Act in question is welfare legislation which was enacted to protect interest of suppliers especially suppliers of nature of small scale industry. But, at same time, intention and purpose of Act cannot be lost sight of and Act in question cannot be given retrospective effect so long as such intention is not clearly made out and derived from Act itself. 41. In case of O. Konavalov vs. Commander, Coast Guard Region and Ors.: (supra), Supreme Court observed thus: POWER TO CONFISCATE 30. power to confiscate and consequent forfeiture of rights or interests are drastic, being penal in nature. Statutes conferring such powers must be read very strictly. There can be no exercise of power under such statutes by way of extension or implication. No expansive meaning can be given therefore to Section 115 of Customs Act merely from dictionary meaning word absolute as has been done by Division Bench of High Court. 42. In case of M/S Pepsi Foods Ltd. and Ors. vs. Special Judicial Magistrate and Ors.(supra), Supreme Court held thus: 29. No doubt magistrate can discharge accused at any stage of trial if he considers charge to be groundless, but that does not mean that accused cannot approach High Court under Section 482 of Code or Article 227 of Constitution to have proceeding quashed against him when complaint does not make out any case against him and still he must undergo agony of criminal trial. It was submitted before us on behalf of State that in case we find that High Court failed to exercise its jurisdiction matter should be remanded back to it to consider if complaint and evidence on record did not make out any case against appellants. If, however, we refer to impugned judgment of High Court it has come to (78 of 160) [CW-2915/2019] conclusion, though without referring to any material on record, that "in present case it cannot be said at this stage that allegations in complaint are so absurd and inherently improbable on basis of which no prudent man can ever reach just conclusion that there exists no sufficient ground for proceedings against accused." We do not think that High Court was correct in coming to such conclusion and in coming to that it has also foreclosed matter for magistrate as well, as magistrate will not give any different conclusion on application filed under Section 245 of Code. High Court says that appellants could very well appear before court and move application under Section 245(2) of Code and that magistrate could discharge them if he found charge to be groundless and at same time it has itself returned finding that there are sufficient grounds for proceeding against appellants. If we now refer to facts of case before us it is clear to us that not only that allegations against appellants do not make out any case for offence under Section 7 of Act and also that there is no basis for complainant to make such allegations. allegations in complaint merely show that appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling beverage "Lehar Pepsi '. complaint does not show what is role of appellants in manufacture of beverage which is said to be adulterated. only allegation is that appellants are manufacturer of bottle. There is no averment as to how complainant could say so and also if appellants manufactured alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. preliminary evidence on which 1st respondent relied in issuing summon to appellants also does not show as to how it could be said that appellants are manufacturers of either bottle or beverage or both. There is another aspect of matter. Central Government in exercise of their powers under Section 3 of Essential Commodities Act, 1955 made Fruit Products Order, 1955 (for short, "Fruit Order"). It is not disputed that beverage in question is "fruit product" within meaning of Clause (2)(b) of Fruit Order and that for manufacture thereof certain licence is required. Fruit Order defines manufacturer and also sets out as to what (79 of 160) [CW-2915/2019] manufacturer is required to do in regard to packaging, marking and labelling of containers of fruit products. One of such requirement is that when bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying licence number and special identification mark of manufacturer to be displayed on top or neck of bottle. licence number of manufacturer shall also be exhibited prominently on side label on such bottle [Clause (8) (1) (b) ]. Admittedly, name of first appellant is not mentioned as manufacturer on top cap of bottle. It is not necessary to refer in detail to other requirements of Fruit Order and consequences of infringement of Order and to penalty to which manufacturer would be exposed under provisions of Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana .(WAKF) Delhi and Anr. v. Union of India and Ors.,[1965]2SCR192 , argument was raised that Fruit Order was invalid because its provision indicated that it was Order which could have been appropriately issued under Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that Fruit order was validly issued under Essential Commodities Act. What we find in present case is that there was nothing on record to show if appellants held licence for manufacture of offending beverage and if, as noted above, first appellant was manufacturer thereof. 29. It is no comfortable thought for appellants to be told that they could appear before court which is at far off place in Ghazipur in State of Uttar Pradesh, seek their release on bail and then to either move application under Section 245(2) of Code or to face trial when complaint and preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is abuse of process of law and courts and High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of Constitution and Section 482 of Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such rigid approach which certainly has led to miscarriage of justice in case. Power of judicial review is (80 of 160) [CW-2915/2019] discretionary but this was case where High Court should have exercised it. 43. In case of Collector of Central Excise, Ahmedabad vs. Orient Fabrics Pvt. Ltd.: (supra) , Apex Court of land, held thus: 3. Tribunal relying upon decision in case of Pioneer Silk Mills Pvt. Ltd. v. Union of India, reported in 1995(80)ELT507(Del) , allowed appeals, holding that provisions of Central Excise Act and Rules made thereunder, so far as they relate to confiscation cannot be made applicable for breach of provisions of Act. It is against said judgment and order of Tribunal, appellant is in appeal before us. 4. Mr. S.R. Bhat, learned counsel appearing for appellant, urged that view taken by Tribunal in allowing appeals was erroneous inasmuch as it is contrary to decisions in case of Khema & Co. (Agencies) Pvt. Ltd. v. State of Maharashtra, reported in [1975]3SCR753 and Commissioner of Central Excise v. Ashok Fashion Ltd., reported in 2002(141)ELT606(Guj). 5. In order to appreciate issue, it is relevant to set out Sub-section (3) of Section 3 of Act, as applicable in this matter and which runs as under: "SECTION 3: Levy and collection of additional duties: (1).. (2) (3) provisions of Central Excise and Salt Act, 1944 and rules made thereunder including those relating to refunds and exemptions from duty shall, so far as may be apply in relation to levy and collection of additional duties as they apply in relation to levy and collection of duties as they apply in relation to levy and collection of duties of excise on goods specified in Sub-section (1)." (81 of 160) [CW-2915/2019] 6. perusal of said provision shows that breach of provision of Act has not been made penal or offence and no power has been given to confiscate goods. It only provides for application of procedural provisions of Central Excise and Salt Act, 1944 and Rules made thereunder. It is no longer res integra that when breach of provisions of Act is penal in nature or penalty is imposed by way of additional tax, constitutional mandate requires clear authority of law for imposition for same. Article 265 of Constitution provides that no tax shall be levied or collected except by authority of law. authority has to be specific and explicit and expressly provided. Act created liability for additional duty for excise, but created no liability for any penalty. That being so, confiscation proceedings against respondents were unwarranted and without authority of law. 7. Parliament by reason of Section 63(a) of Finance Act, 1994 (Act No. 32 of 1994) substituted Sub-section (3) of Section 3 of said Act, which now reads as under: "3. Levy and collection of Additional Duties:- (1) .. (2) . (3) provisions of [Central Excise Act, 1944] (1 of 1944), and rules made thereunder, including those relating to refunds, exemptions from duty, offences and penalties, shall, so far as may be, apply in relation to levy and collection of additional duties as they apply in relation to levy and collection of duties of excise on goods specified in Sub-section (1)." 19. It is now well settled principles of law that expropriatory legislation must be strictly construed (see D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors., reported in : [2003]2SCR1 ). It is further trite that penal statute must receive strict construction. 20. matter may be considered from another angle. Parliament by reason of Amending Act 32 of (82 of 160) [CW-2915/2019] 1994 consciously brought in expression offences and penalties' in Sub-section (3) of Section 3 of Act. mischief rule, if applied, would clearly show that such amendment was brought with view to remedy defect contained in unamended provisions of Sub-section (3) of Section 3 of Act. Offences having regard to provisions contained in Article 20 of Constitution of India cannot be given retrospective effect. In that view of matter too Sub- section (3) of Section 3 of Act as amended cannot be said to have any application at all. 21. In view of aforesaid decisions, it must be held that confiscation proceedings taken against respondents and penalty imposed upon them were totally without authority of law and were rightly set aside by Tribunal. 44. In case of Suhas H. Pophale vs. Oriental Insurance Co. Ltd. and its Estate Officer: (supra) , Supreme Court, held thus: 45. It has been laid down by this Court time and again that if there are rights created in favour of any person, whether they are property rights or rights arising from transaction in nature of contract, and particularly if they are protected under statute, and if they are to be taken away by any legislation, that legislation will have to say so specifically by giving it retrospective effect. This is because prima facie every legislation is prospective (see para 7 of Constitution Bench judgment in Janardan Reddy v. State reported in AIR 1951 SC 124). In instant case, Appellant was undoubtedly protected as 'deemed tenant' under Section 15A of Bombay Rent Act, prior to merger of erstwhile insurance company with Government Company, and he could be removed only by following procedure available under Bombay Rent Act. 'deemed tenant' under Bombay Rent Act, continued to be protected under succeeding Act, in view of definition of 'tenant' under Section 7(15)(a)(ii) of Maharashtra Rent Control Act, 1999. Thus, as far as tenants of premises which are not covered under Public Premises Act are concerned, those tenants who were deemed tenants under Bombay Rent Act continued (83 of 160) [CW-2915/2019] to have their protection under Maharashtra Rent Control Act, 1999. Should coverage of their premises under Public Premises Act make difference to tenants or occupants of such premises, and if so, from which date? 46. It has been laid down by this Court through number of judgments rendered over years, that legislation is not be given retrospective effect unless specifically provided for, and not beyond period that is provided therein. Thus, Constitution Bench held in Garkiapati Veeraya v. N. Subbiah Choudhry reported in AIR 1957 SC 540 that in absence of anything in enactment to show that it is to be retrospective, it cannot be so constructed, as to have effect of altering law applicable to claim in litigation at time when act was passed. In that matter, Court was concerned with issue as to whether Appellant's right to file appeal continued to be available to him for filing appeal to Andhra Pradesh High Court after it was created from erstwhile Madras High Court. Constitution Bench held that right very much survived, and vested right of appeal can be taken away only by subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 49. same has been view taken by bench of three Judges of this Court in J.P. Jani, Income Tax Officer, Circle IV, Ward G, Ahmedabad v. Induprasad Devshanker Bhatt reported in AIR 1969 SC 778 in context of provision of Income Tax Act, 1961, in matter of reopening of assessment orders. In that matter Court was concerned with issue as to whether Income Tax Officer could re-open assessment under Section 297(2) (d)(ii) and 148 of Income Tax Act, 1961, although right to re-open was barred by that time under earlier Income Tax Act, 1922. This Court held that same was impermissible and observed in paragraph 5 as follows: 5 reason is that such construction of Section 297(2)(d)(ii) would be tantamount to giving of retrospective operation to that section which is not warranted either by express language of section or by necessary implication. principle is based on well-known (84 of 160) [CW-2915/2019] rule of interpretation that unless terms of statute expressly so provide or unless there is necessary implication, retrospective operation should not be given to statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux of time. 50. In Arjan Singh v. State of Punjab reported in AIR 1970 SC 703, this Court was concerned with issue of date of application of Section 32KK added into Pepsu Tenancy and Agricultural Lands Act, 1955. This Court held in paragraph 4 thereof as follows: 4. It is well-settled rule of construction that no provision in statute should be given retrospective effect unless legislature by express terms or by necessary implication has made it retrospective and that where provision is made retrospective, care should be taken not to extend its retrospective effect beyond what was intended. 52. In case of K.S. Paripoornan v. State of Kerala reported in AIR 1995 SC 1012, Constitution Bench of this Court was concerned with retrospective effect of Section 23(1A) introduced in Land Acquisition Act. While dealing with this provision, this Court has observed as follows: 64. statute dealing with substantive rights differs from statute which relates to procedure or evidence or is declaratory in nature inasmuch as while statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is clear indication that such was not intention of legislature. statute is regarded retrospective if it operates on cases or facts coming into existence before its commencement in sense that it (85 of 160) [CW-2915/2019] affects, even if for future only, character or consequences of transactions previously entered into or of other past conduct. By virtue of presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of law, whether relating to form or to substance. Similarly, provisions in which contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See: Halsbury's Laws of England, 4th Edn. Vol. 44, paras 921, 922, 925 and 926). 54. Having noted aforesaid observations, it is very clear that in facts of present case, Appellant's status as deemed tenant was accepted under state enactment, and therefore he could not be said to be in "unauthorised occupation". His right granted by state enactment cannot be destroyed by giving any retrospective application to provisions of Public Premises Act, since there is no such express provision in statute, nor is it warranted by any implication. In fact his premises would not come within ambit of Public Premises Act, until they belonged to Respondent No. 1, i.e. until 1.1.1974. corollary is that if Respondent No. 1 wanted to evict Appellant, remedy was to resort to procedure available under Bombay Rent Act or its successor Maharashtra Rent Control Act, by approaching forum thereunder, and not by resorting to provisions of Public Premises Act. 45. In case of State of Punjab and Ors. vs. Bhajan Kaur and Ors.: (supra) , Apex Court of land, held thus: (86 of 160) [CW-2915/2019] 9. statute is presumed to be prospective unless held to be retrospective, either expressly or by necessary implication. substantive law is presumed to be prospective. It is one of facets of rule of law. 10. Section 92-A of 1939 Act created right and liability on owner of vehicle. It is statutory liability. Per se it is not tortuous liability. Where right is created by enactment, in absence of clear provision in statute, it is not to be applied retrospectively. 13. No reason has been assigned as to why 1988 Act should be held to be retrospective in character. rights and liabilities of parties are determined when cause of action for filing claim petition arises. As indicated hereinbefore, liability under Act is statutory liability. liability could, thus, be made retrospective only by reason of statute or statutory rules. It was required to be so stated expressly by Parliament. Applying principles of interpretation of statute, 1988 Act cannot be given retrospective effect, more particularly, when it came into force on or about 1.07.1989. 17. In Garikapati v. Subbaiah Chowdhary [1957]1SCR488 , law is stated, thus: 25...The golden rule of construction is that, in absence of anything in enactment to show that it is to have retrospective operation, it cannot be so construed as to have effect of altering law applicable to claim in litigation at time when Act was passed. 23. In Madishetti Bala Ramul (D) by LRs. v. Land Acquisition Officer: (2007)9SCC650 , this Court observed: 19. In Land Acquisition Officer-cum- DSWO, A.P. v. B.V. Reddy and Sons this Court opined that Section 25 being not procedural provision will have no retrospective effect, holding: 6. Coming to second question, it is well- settled principle of construction that (87 of 160) [CW-2915/2019] substantive provision cannot be retrospective in nature unless provision itself indicates same. amended provision of Section 25 nowhere indicates that same would have any retrospective effect. Consequently, therefore, it would apply to all acquisitions made subsequent to 24-9-1984, date on which Act 68 of 1984 came into force. Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on 30- 4-1982 and came into operation with effect from 24-9-1984.... 27. For reasons aforementioned, decisions of Kerala and Punjab & Haryana High Court do not lay down good law. They are overruled accordingly. However, as State has not asked for any relief against respondents, this appeal is dismissed. No costs. 46. In case of Joseph Isharat vs. Rozy Nishikant Gaikwad:(supra), Bombay High Court, held thus: 4. Under Benami Act, as it stood on date of suit as well as on date of filing of written statement and passing of decree by courts below, provided for definition of "benami transaction" under clause (a) of Section 2. Under that provision, any transaction in which property is transferred to one person for consideration paid or provided by another came within definition of "benami transaction". Section 3 of Benami Act, in sub-section (1), provided that no person shall enter into any benami transaction. Sub-section (2) contained two exceptions to prohibition contained in sub-section (1). first exception, contained in clause (a) of sub-section (2), was in respect of purchase of property by any person in name of his wife or unmarried daughter. In case of such purchase, it was to be presumed, unless contrary was proved, that property was purchased for benefit of wife or unmarried daughter, as case may be. Simultaneously, Section 4 of Benami Act contained prohibition in respect of right to recover property held benami. Sub-section (1) provided that no suit, claim or action to enforce any right in respect of any property held benami against person in whose name property is held, or against any other person, shall lie by or on behalf of person claiming to be real owner of such property. Sub-section (2) made provisions likewise in respect of defence based on plea of benami transaction. Sub- (88 of 160) [CW-2915/2019] section (2) provided that no defence based on any right in respect of any property held benami, whether against person in whose name property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of person claiming to be real owner of such property. There was twofold exception to this restriction. First was in respect of person in whose name property is held being coparcener in Hindu undivided family and property being held for benefit of coparceners of family. second exception was in respect of person, in whose name property was held, being trustee or other person standing in fiduciary capacity and property being held for benefit of another person for whom he was such trustee or towards whom he stood in such capacity. present suit was filed when these provisions were in operation. These provisions continued to apply even when written statement was filed by Defendant and suit was heard and decreed by both courts below. legal provisions continued to apply even when second appeal was filed before this court. It is only now during pendency of second appeal, when it has come up for final hearing, that there is change in law. Benami Act has been amended by Parliament in 2016 with passing of Benami Transactions (Prohibition) Amendment Act, 2016. This amendment has come into effect from 01 November 2016. In Amended Act definition of "benami transaction" has undergone change. Under Amended Act "benami transaction" means (under Section 2(9) of Act) transaction or arrangement where property is transferred to, or is held by, person, and consideration for such property has been provided, or paid by, another person; and property is held for immediate or future benefit, direct or indirect, of person who has provided consideration. There are four exceptions to this rule. first is in respect of karta or member of Hindu undivided family holding property for benefit of family. second exception is in respect of person standing in fiduciary capacity holding property for benefit of another person towards whom he stands in such capacity. third exception is in case of individual who purchases property in name of his spouse or child, consideration being provided or paid out of known sources of individual. fourth exception is in case of purchase of property in name of brother or sister or lineal ascendant or descendant where names of such brother or sister or lineal ascendant or descendant, as case may be, and individual appear as joint owners in any document. Sub-section (1) of Section 3 contains very same prohibition as under unamended Act, in (89 of 160) [CW-2915/2019] that it prohibits all benami transactions. Section 4 likewise prohibits suits, claims or actions or defences based on plea of benami as in case of unamended Act. submission is that under this scheme of law, step-daughter not having been defined under Benami Act, but having been defined under Income Tax Act, 1961, by virtue of sub-section (31) of Section 2 of amended Benami Act, meaning of expression will be one assigned to it under Income Tax Act. definition of daughter under Income Tax Act admits of step-child within it. It is submitted that under amended definition of "benami transaction", thus, there is clear exception in respect of purchase made in name of step- daughter by individual provided, of course, consideration has been provided or paid out of known sources of individual. 7. What is crucial here is, in first place, whether change effected by legislature in Benami Act is matter of procedure or is it matter of substantial rights between parties. If it is merely procedural law, then, of course, procedure applicable as on date of hearing may be relevant. If, on other hand, it is matter of substantive rights, then prima facie it will only have prospective application unless amended law speaks in language "which expressly or by clear intention, takes in even pending matters.". Short of such intendment, law shall be applied prospectively and not retrospectively. 8. As held by Supreme Court in case of R. Rajagopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630, Section 4 of Benami Act, or for that matter, Benami Act as 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 Act. Merely because it uses word "it is declared", Act is not piece of declaratory or curative legislation. If one has regard to substance of law rather than to its form, it is quite clear, as noted by Supreme Court in R. Rajagopal Reddy, that Benami Act affects substantive rights and cannot be regarded as having retrospective operation. Supreme Court in R. Rajagopal Reddy also held that since law nullifies defences available to real owners in recovering properties held benami, law must apply irrespective of time of benami transaction and that expression "shall lie" in Section 4(1) or "shall be allowed" in Section 4(2) are prospective and apply to present (90 of 160) [CW-2915/2019] (future stages) as well as future suits, claims and actions only. These observations clearly hold field even as regards present amendment to Benami Act. amendments introduced by Legislature affect substantive rights of parties and must be applied prospectively. 47. In case of Jeans Knit (P) Ltd. vs. Deputy Commissioner of Income Tax and Ors (supra), Supreme Court, held thus: 2. We may make it clear that this Court has not made any observations on merits of cases, i.e. contentions which are raised by Appellant challenging move of IT authorities to reopen assessment. Each case shall be examined on its own merits keeping in view scope of judicial review while entertaining such matters, as laid down by this Court in various judgments. 3. We are conscious of fact that High Court has referred to judgment of this Court in CIT v. Chhabil Dass Agarwal (2013) 261 CTR (SC) 113 : (2013) 91 DTR (SC) 193 : (2013) 357 ITR 357 (SC). We find that principle laid down in said case does not apply to these cases. 4. During pendency of these appeals, stay of reassessment was granted, which shall continue till disposal of writ petitions before High Courts. appeals are allowed in aforesaid terms. 48. In case of Raza Textiles Ltd. vs. Income Tax Officer, Rampur:(supra), Apex Court of land, observed thus: 3. There was material before him on this question. He had jurisdiction to decide question either way. It cannot be said that officer assumed jurisdiction by wrong decision on this question of residence". Appellate Bench appears to have been under impression that Income-tax Officer was sole judge of fact whether firm in question was resident or non-resident. This conclusion, in our opinion, is wholly wrong. No authority, much less quasi-judicial authority, can confer jurisdiction on itself by deciding jurisdictional fact wrongly question (91 of 160) [CW-2915/2019] whether jurisdictional fact has been rightly decided or not is question that is open for examination by High Court in application for writ of certiorari. If High Court comes to conclusion, as learned single Judge has done in this case, that Income-tax Officer had clutched at jurisdiction by deciding jurisdictional fact erroneously, then assesses was entitled for writ of certiorari prayed for by him. It is incomprehensible to think that quasi-judicial authority like Income-tax Officer can erroneously decide jurisdictional fact and thereafter proceed to impose levy on citizen. In our opinion Appellate Bench is wholly wrong in opining that Income-tax Officer can "decide either way". 49. In case of Malayala Manorama Co. Ltd vs Assistant Commissioner, Commercial Taxes, (supra), it has been held thus: 4. Assistant Commissioner, Commercial Tax, who had issued notice, came to conclusion that concession has been extended to non-taxable goods also and formed opinion that concession is applicable only to `goods' and newspaper was not `goods' within meaning of Section 2 of Act. While referring to another judgment of this Court in Collector of Central Excise v. Ballarpur Industries Ltd. [(1989) 4 SCC 566 : (1990) 77 Sales Tax Cases 282], said Assistant Commissioner concluded that newspaper was not `goods' and, therefore, declaration was not appropriate and imposed penalty of Rs. 14,66,256 for year 2000-2001. 5. assessee firm did not take recourse to statutory remedies available under Act but questioned very correctness and legality of issuance of notice as well as order passed by Assistant Commissioner before High Court of Kerala at Ernakulam, by filing writ petition under Article 226 of Constitution of India. 6. This writ petition was contested by Department which filed detailed counter affidavit. It was specifically pleaded by Department that for availability of statutory alternative remedy as well as for other reasons and facts stated in reply, writ petition (92 of 160) [CW-2915/2019] itself was not maintainable. Division Bench of High Court while considering this primary objection raised by Department before High Court, came to conclusion that as facts were not in dispute and questions raised were purely legal and are to be tested in view of judgment of this Court in case of Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer [(1994) 93 Sales Tax Cases 95 : (1994) 2 SCC 434], Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1] as well as judgment in case of State of H.P. & Ors. v. Gujarat Ambuja Cements Ltd. [(2005) 6 SCC 499 : (2005) 142 Sales Tax Cases 1], writ petition was maintainable. However, while laying emphasis that newspaper would not fall within expression `goods' under sub-section 3 of Section 5 of Act, High Court held that notice issued was proper as Form No. 18 which gives benefit of concessional rate of tax was factually not correct. While dismissing writ petition, however, Bench issued direction to assessing authority to examine whether imposition of penalty at double rate is justified in facts and circumstances of case, within period of two months from date of receipt of copy of judgment. It is this judgment of High Court which has been assailed in present appeal under Article 136 of Constitution of India. 9. Having heard learned senior counsel appearing for parties, we are of considered view that order under challenge requires interference by this Court. There is no dispute to fact that material amendments were carried out in provisions of Section 5(3) of Act with effect from 01.04.2002. existing 1st proviso to Section 5(3)(i) was deleted as well as expression `or uses same in manufacture of any goods which are not liable to tax in this Act' in Section 5(3)(i) was also deleted. Despite these amendments, as it appears from record before Court, format of Form No. 18 has not been amended consequently. However, fact of matter remains that High Court has not dwelt upon these legal issues which are core issues involved in present case. In our view, discussion on first issue would certainly have some bearing on alternative argument raised on behalf of appellant before us. Thus, it may not be possible for this Court to sustain finding recorded by High Court in that (93 of 160) [CW-2915/2019] regard. Of course, we are not ruling out all possibilities of High Court arriving at same conclusion if it is of that view after examining amendments as well as submissions made on behalf of appellant with regard to its alternative submissions. In light of this discussion, we pass following order : (a) impugned order dated 2nd August, 2006 passed by High Court is hereby set aside. (b) matter is remanded to High Court for consideration afresh in accordance with law on both aforesaid submissions while leaving all contentions of assessee and Department open for year 2000- 2001, in relation to imposition of penalty under Section 45 (A) of Act. (c) legality and validity or otherwise of notice dated 16.01.2006 and 17.01.2006 shall be subject to final decision of High Court. 50. In case of K.T. Plantation Pvt. Ltd. and Ors. vs. State of Karnataka, (supra), Supreme Court observed thus: 110. Article 300A proclaims that no person can be deprived of his property save by authority of law, meaning thereby that person cannot be deprived of his property merely by executive fiat, without any specific legal authority or without support of law made by competent legislature. expression 'Property' in Article 300A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law. This Court in State of W.B. and Ors. v. Vishnunarayan and Associates (P) Ltd and Anr. MANU/SC/0199/2002 : (2002) 4 SCC 134, while examining provisions of West Bengal Great Eastern Hotel (Acquisition of Undertaking) Act, 1980, held in context of Article 300A that State or executive offices cannot interfere with right of others unless they can point out specific provisions of law which authorises their rights. Article 300A, therefore, protects private property against executive action. But question that looms large is as to what extent their rights will be protected when they are sought to be illegally deprived of their properties on strength of legislation. Further, it was also (94 of 160) [CW-2915/2019] argued that twin requirements of 'public purpose' and 'compensation' in case of deprivation of property are inherent and essential elements or ingredients, or "inseparable concomitants" of power of eminent domain and, therefore, of entry 42, List III, as well and, hence, would apply when validity of statute is in question. On other hand, it was contention of State that since Constitution consciously omitted Article 19(1)(f), Articles 31(1) and 31(2), intention of Parliament was to do away doctrine of eminent domain which highlights principles of public purpose and compensation. 111. Seervai in his celebrated book 'Constitutional Law of India' (Edn. IV), spent whole Chapter XIV on 44th Amendment, while dealing with Article 300A. In paragraph 15.2 (pages 1157-1158) author opined that confiscation of property of innocent people for benefit of private persons is kind of confiscation unknown to our law and whatever meaning word "acquisition" may have does not cover "confiscation" for, to confiscate means "to appropriate to public treasury (by way of penalty)". Consequently, law taking private property for public purpose without compensation would fall outside Entry 42 List III and cannot be supported by another Entry in List III. Requirements of public purpose and payment of compensation according to learned author be read into Entry 42 List III. Further learned author has also opined that repeal of Article 19(1)(f) and 31(2) could have repercussions on other fundamental rights or other provisions which are to be regarded as part of basic structure and also stated that notwithstanding repeal of Article 31(2), word "compensation" or concept thereof is still retained in Article 30(1A) and in second proviso to Article 31A(1) meaning thereby that payment of compensation is condition of legislative power in Entry 42 List III. 51. In case of Mangathai Ammal (Died) through L.Rs. and Ors. vs. Rajeswari and Ors. (supra), it has been held thus: 12. It is required to be noted that benami transaction came to be amended in year 2016. As per Section 3 of Benami Transaction (Prohibition) (95 of 160) [CW-2915/2019] Act 1988, there was presumption that transaction made in name of wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3(2) of Benami Transaction Act, 1988 statutory presumption, which was rebuttable, has been omitted. It is case on behalf of Respondents that therefore in view of omission of Section 3(2) of Benami Transaction Act, plea of statutory transaction that purchase made in name of wife or children is for their benefit would not be available in present case. Aforesaid cannot be accepted. As held by this Court in case of Binapani Paul (Supra) Benami Transaction (Prohibition) Act would not be applicable retrospectively. Even otherwise and as observed hereinabove, Plaintiff has miserably failed to discharge his onus to prove that Sale Deeds executed in favour of Defendant No. 1 were benami transactions and same properties were purchased in name of Defendant No. 1 by Narayanasamy Mudaliar from amount received by him from sale of other ancestral properties. 52. In case of R. Rajagopal Reddy (Dead) by L.Rs. and Ors. vs. Padmini Chandrasekharan (Dead) by L.Rs. (supra), Supreme Court held thus: mere look at above provisions shows that prohibition under Section 3(1) is against persons who are to enter into benami transactions and it has laid down that no person shall enter into any benami transaction which obviously means from date on which this prohibition comes into operation i.e. with effect from September 5, 1988. That takes care of future benami transactions. We are not concerned with Sub-section (2) but subsection (3) of Section 3 also throws light on this aspect. As seen above, it states that whoever enters into any benami transaction shall be punishable with imprisonment for term which may extend to three years or with fine or with both. Therefore, provision creates new offence of entering into such benami transactions. It is made non-cognizable and bailable as laid down under Sub-section (4). It is obvious that when statutory provision creates new liability and new offence, it would naturally have prospective operation and would cover only those offences which (96 of 160) [CW-2915/2019] take place after Section 3(1) comes into operation. In fact Saikia J. speaking for Court in Mithilesh Kumari's case (supra) has in terms observed at page 635 of report that Section 3 obviously cannot have retrospective operation. We respectfully concur with this part of learned Judge's view. real problem centers round effect of Section 4(1) on pending proceedings wherein claim to any property on account of it being held benami by other side is on anvil and such proceeding had not been finally disposed of by time Section 4(1) came into operation, namely, on 19th May, 1988. Saikia J. speaking for Division Bench in case of Mithilesh Kumari (supra) gave following reasons for taking view that though Section 3 is prospective and though Section 4(1) is also not expressly made retrospective, by legislature, by necessary implication, it appears to be retrospective and would apply to all pending proceedings wherein right to property allegedly held benami is in dispute between parties and that Section 4(1) will apply at whatever stage litigation might be pending in hierarchy of proceedings :- (1) . (2) . (3) When Act is declaratory in nature, presumption against retrospectivity is not applicable. statute declaring benami transactions to be unenforceable belongs to this type. presumption against taking away vested right will not apply in this case in as much as under law it is benamidar in whose name property stands, and law only enabled real owner to recover property from him which right has now been ceased by Act. In one sense there was right to recover or resist in real owner against benamidar. Ubi Jus ibi remedium. Where remedy is barred, right is rendered unenforceable. (4) When law nullifies defences available to real owners in recovering benami property from benamidar, law must apply irrespective of time of benami transactions. expression "shall lie" under Section 4(1) and "shall be allowed" in Section 4(2) are prospective and shall apply to present (future stages) and future suits, claims or action only. (5) .. (6) . (97 of 160) [CW-2915/2019] 11. Before we deal with these six considerations which weighed with Division Bench for taking view that Section 4 will apply retrospectively in sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in hierarchy of proceedings even upto this Court, when Section 4 came into operation, it would be apposite to recapitulate salient feature of Act. As seen earlier, preamble of Act itself states that it is act to prohibit benami transactions and right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface then existing rights of real owners of properties held by others benami. Such act was not given any retrospective effect by legislature. Even when we come to Section 4, it is easy to visualise that Sub- section (1). of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against person in whose name property is held or against any other shall lie by or on behalf of person claiming to be real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover possession of property held benami by defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such right after coming into operation of Section 4(1) that is 19th May, 1988, shall not lie. legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on date when Section 4 came into force shall not be proceeded with and shall stand abated. On contrary, clear legislative intention is seen from words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to portals of any Court for seeking such relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, word 'lie' has been defined in connection with suits and proceedings. At page 848 of Dictionary while dealing with topic No. 9 under definition of term 'lie' it is stated as under :- For action, claim appeal ect. to subsist; be maintainable or admissible. (98 of 160) [CW-2915/2019] word 'lie' in connection with suit, claim or action is not defined by Act. If we go by aforesaid dictionary meaning it would mean that such suit, claim or action to get any property declared benami will not be admitted on behalf of such plaintiff or applicant against concerned defendant in whose name property is held on and from date on which this prohibition against entertaining of such suits comes into force. With respect, view taken by that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to date when Section came into force and which has effect of destroying then existing right of plaintiff in connection with suit property cannot be sustained in face of clear language of Section 4(1). It has to be visualised that legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of Section would amount to taking view which would run counter to legislative scheme and intent projected by various provisions of Act to which we have referred earlier. It is, however, true as held by Division Bench that on express language of Section 4(1) any right inhering in real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to coming into operation of Section 4(1), and hence-after Section 4(1) applied no suit can lie in respect to such past benami transaction. To that extent Section may be retroactive. To highlight this aspect we may take illustration. If benami transaction has taken place in 1980 and suit is filed in June 1988 by plaintiff claiming that he is real owner of property and defendant is merely benamidar and consideration has flown from him then such suit would not lie on account of provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of prohibitory provision of Section 4(1); but that is only effect of retroactivity of Section 4(1) and nothing more than that. From conclusion that Section 4(1) shall apply even to past benami transactions to aforesaid (99 of 160) [CW-2915/2019] extent, next step taken by Division Bench that therefore, then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 17. As regards, reason No. 3, we are of considered view that Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies real intention of legislature in connection with earlier existing transaction or enactment, it does not create new rights or obligations. On express language of Section 3, Act cannot be said to be declaratory but in substance it is prohibitory in nature and seeks to destroy rights of real owner qua properties held benami and in this connection it has taken away right of real owner both for filing suit or for taking such defence in suit by benamidar. Such Act which prohibits benami transactions and destroys rights flowing from such transactions as existing earlier is really not declaratory enactment. With respect, we disagree with line of reasoning which commanded to Division Bench. In this connection, we may refer to following observations in 'Principles of Statutory Interpretation', 5th Edition 1992, by Shri G.P. Singh, at page 315 under caption 'Declaratory statutes' :- presumption against retrospective operation is not applicable to declaratory statutes. As states in CRAIES and approved by Supreme Court : "For modern purposes declaratory Act may be defined as Act to remove doubts existing as to common law, or meaning or effect of any statute. Such Acts are usually held to be retrospective. usual reason for passing declaratory Act is to set aside what Parliament deems to have been judicial error whether in statement of common law or in interpretation of statutes. Usually, if not invariably, such Act contains preamble, and also word 'declared' as well as word enacted". But use of words 'it is declared' (100 of 160) [CW-2915/2019] is not conclusive that Act is declaratory for these words may, at times be used to introduce new rules of law and Act in latter case will only be amending law and will not necessarily be retrospective. In determining, therefore, nature of Act, regard must be had to substance rather than to form. If new Act is to explain earlier Act, it would be without object unless construed retrospective. explanatory Act is generally passed to supply obvious omission or to clear up doubts as to meaning of previous Act. It is well settled that if statute is curative or merely declaratory of previous law retrospective operation is generally intended. language 'shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In absence of clear words indicating that amending Act is declaratory, it would not be so construed when pre-amended provision was clear and unambiguous. amending Act may be purely clarificatory to clear meaning of provision of principal Act which was already implicit. clarificatory amendment of this nature will have retrospective effect and, therefore, if principal Act was existing law when constitution came into force amending Act also will be part of existing law. In Mithilesh Kumari v. Prem Bihari Khare, Section 4 of Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be Act declaratory in nature for it was not passed to clear any doubt existing as to common law or meaning or effect of any statute. conclusion however, that Section 4 applied also to past benami transactions may be supportable on language used in section. 18. No exception can be taken to aforesaid observations of learned author which in our view can certainly be pressed in service for judging whether impugned section is declaratory in nature or not. Accordingly it must be held that Section 4 or for that matter Act as whole is not piece of declaratory or curative legislation. It creates substantive rights in favour of benamidars and destroys substantive rights of real owners (101 of 160) [CW-2915/2019] who are parties to such transactions and for whom new liabilities are created by Act. 53. In case of Garikapatti Veeraya Vs. N. Subbiah Choudhury, AIR 1957 SC 540, Supreme Court observed thus: 25. In construing articles of Constitution we must bear in mind certain cardinal rules of construction. It has been said in Hough v. Windus [1884] 12 Q.B.D. 224, that "statutes should be interpreted, if possible, so as to respect vested right." golden rule of construction is that, in absence of anything in enactment to show that it is to have retrospective operation, it cannot be so construed as to have effect of altering law applicable to claim in litigation at time when Act was passed [Leeds and County Bank Ltd. v. Walker (1883) 11 Q.B.D. 84; Moon v. Durden (1848) 2 Ex. 22; 76 R.R. 479. following observation of Rankin C.J. in Sadar Ali v. Dalimuddin (supra) at page 520 is also apposite and helpful : "Unless contrary can be shown provision which takes away jurisdiction is itself subject to implied saving of litigant's right." In Janardan Reddy v. State [1950]1SCR940 Kania C.J. in delivering judgment of Court observed that our Constitution is generally speaking prospective in its operation and is not to have retroactive operation in absence of any express provision to that effect. same principle was reiterated in Keshavan Madhava Menon v. State of Bombay 1951CriLJ680 and finally in Dajisaheb Mane and Others v. Shankar Rao Vithal Rao [1955]2SCR872 to which reference will be made in greater detail hereafter. 54. In case of Keshavan Madhava Menon vs. State of Bombay, (supra), Supreme Court held thus: 7. It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with provisions of Part III shall, to extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. (102 of 160) [CW-2915/2019] There is no reason why this rule of interpretation should not be applied for purpose of interpreting our Constitution. We find nothing in language of article 13(1) which may be read as indicating intention to give it retrospective operation. On contrary, language clearly points other way. provisions of Part III guarantee what are called fundamental rights. Indeed, heading of Part III is "Fundamental Rights". These rights are given, for first time, by and under our Constitution. Before Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with exercise of fundamental rights (which are for first time created by Constitution) shall to that extent be void. As fundamental rights became operative only on and from date of Constitution question of inconsistency of existing laws with those rights must necessarily arise on and from date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that article 13(1) does not in terms make existing laws which are inconsistent with fundamental rights void ab initio or for all purposes. On contrary, it provides that all existing laws, in so far as they are inconsistent with fundamental rights, shall be void to extent of their inconsistency. They are not void for all purposes but they are void only to extent they come into conflict with fundamental rights. In other words, on and after commencement of Constitution no existing law will be permitted to stand in way of exercise of any of fundamental rights. Therefore, voidness of existing law is limited to future exercise of fundamental rights. Article 13(1) cannot be read as obliterating entire operation of inconsistent laws, or to wipe them out altogether from statute book, for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before date of Constitution. (103 of 160) [CW-2915/2019] Learned counsel for appellant has drawn our attention to articles 249(3), 250, 357, 358 and 369 where express provision has been made for saving things done under laws which expired. It will be noticed that each of those articles was concerned with expiry of temporary statutes. It is well known that on expiry of temporary statute no further proceedings can be taken under it, unless statute itself saved pending proceedings. If, therefore, offence had been committed under temporary statute and proceedings were initiated but offender had not been prosecuted and punished before expiry of statute, then, in absence of any saving clause, pending prosecution could not be proceeded with after expiry of statute by efflux of time. It was on this principle that express provision was made in several articles noted above for saving things done or omitted to be done under expiring laws referred to therein. As explained above, article 13(1) is entirely prospective in its operation and as it was not intended to have any retrospective effect there was no necessity at all for inserting in that article any such saving clause. effect of article 13(1) is quite different from effect of expiry of temporary statute or repeal of statute by subsequent statute. As already explained, article 13(1) only has effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to exercise of fundamental rights on and after date of commencement of Constitution. It has no retrospective effect and if, therefore, act was done before commencement of Constitution in contravention of provisions of any law which, after Constitution, becomes void with respect to exercise of any of fundamental rights, inconsistent law is not wiped out so far as past act is concerned for, to say that it is, will be to give law retrospective effect. There is no fundamental right that person shall not be prosecuted and punished for offence committed before Constitution came into force. So far as past acts are concerned law exists, notwithstanding that it does not exist with respect to future exercise of fundamental rights. We, therefore, agree with conclusion arrived at by High Court on second question, although on (104 of 160) [CW-2915/2019] different grounds. In view of that conclusion, we do not consider it necessary to examine reasons of High Court for its conclusion. In our opinion, therefore, this appeal fails, and is dismissed. 19. reference to Constitution will show that framers thereof have used word "repeal" wherever necessary (see articles 252, 254, 357, 372 and 395). They have also used such words as "invalid" (see articles 245, 255 and 276), "cease to have effect" (see articles 358 and 372), "shall be inoperative", etc. They have used word "void" only in two articles, these being article 13(1) and article 154, and both these articles deal with cases where certain law is repugnant to another law to which greater sanctity is attached. It further appears that where they wanted to save things done or omitted to be done under existing law, they have used apt language for purpose; see for example articles 249, 250, 357, 358 and 369. thoroughness and precision which framers of Constitution have observed in matters to which reference has been made, disinclines me to read into article 13(1) saving provision of kind which we are asked to read into it. Nor can I be persuaded to hold that treating Act as void under article 13(1) should have milder effect upon transactions not past and closed than repeal of Act or its expiry in due course of time. In my opinion, strong sense in which word "void" is normally used and context in which it has been used are not to be completely ignored. Evidently, framers of Constitution did not approve of laws which are in conflict with fundamental rights, and, in my judgment, it would not be giving full effect to their intention to hold that even after Constitution has come into force, laws which are inconsistent with fundamental rights will continue to be treated as good and effectual laws in regard to certain matters, as if Constitution had never been passed. How such meaning can be read into words used in article 13(1), it is difficult for me to understand. There can be no doubt that article 13(1) will have no retrospective operation, and transactions which are past and closed, and rights which have already vested, will remain untouched. But with regard to inchoate matters which were still not determined when Constitution came into force, and as regards proceedings whether not yet (105 of 160) [CW-2915/2019] begun, or pending at time of enforcement of Constitution and not yet prosecuted to final judgment, very serious question arises as to whether law which has been declared by Constitution to be completely ineffectual can yet be applied. On principle and on good authority, answer to this question would appear to me to be that law having ceased to be effectual can no longer be applied. In R. v. Mawgan (Inhabitants) (1888) 8 A. & E. 496 presentment as to non-repair of highway had been made under 13 Geo. 3, c. 78, s. 24, but before case came on to be tried, Act was repealed. In that case, Lord Denman C.J. said : "If question had related merely to presentment, that no doubt is complete. But dum loquimur, we have lost power of giving effect to anything that takes place under that proceeding."And Littledale J. added : "I do not say that what is already done has become bad, but that no more can be done." In my opinion, this is precisely way in which we should deal with present case. 55. In case of Thakur Bhim Singh (Dead) by Lrs and Ors. vs. Thakur Kan Singh (1980) 3 SCC 72, Supreme Court held thus: 14. Under English law, when real or personal property is purchased in name of stranger, resulting trust will be presumed in favour of person who is proved to have paid purchase money in character of purchaser. It is, however, open to transferee to rebut that presumption by showing that intention of person who contributed purchase money was that transferee should himself acquire beneficial interest in property. There is, however, exception to above rule of presumption made by English law when person who gets legal title under conveyance is either child or wife of person who contributes purchase money or his grand child, whose father is dead. rule applicable in such cases is known as doctrine of advancement which requires court to presume that purchase is for benefit of person in whose favour legal title is transferred even though purchase money may have been contributed by father or husband or grandfather, as case (106 of 160) [CW-2915/2019] may be, unless such presumption is rebutted by evidence showing that it was intention of person who paid purchase money that transferee should not become real owner of property in question. doctrine of advancement is not in vogue in India. counterpart of English law of resulting trust referred to above is Indian law of benami transactions. Two kinds of benami transactions are generally recognized in India. Where person buys property with his own money but in name of another person without any intention to benefit such other person, transaction is called benami. In that case, transferee holds property for benefit of person who has contributed purchase money, and he is real owner. second case which is loosely termed as benami transaction is case where person who is owner of property executes conveyance in favour of another without intention of transferring title to property thereunder. In this case, transferor continues to be real owner. difference between two kinds of benami transactions referred to above lies in fact that whereas in former case, there is operative transfer from transferor to transferee though transferee holds property for benefit of person who has contributed purchase money, in latter case, there is no operative transfer at all and title rests with transferor notwithstanding execution of conveyance. One common feature, however, in both these cases is that real title is divorced from ostensible title and they are vested in different persons. question whether transaction is benami transaction or not mainly depends upon intention of person who has contributed purchase money in former case and upon intention of person who has executed conveyance in latter case. principle underlying former case is also statutorily recognized in Section 82 of Indian Trusts Act, 1882 which provides that where property is transferred to one person for consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for benefit of transferee, transferee must hold property for benefit of person paying or providing consideration. This view is in accord with following observations made by this Court in Meenakshi Mills. (107 of 160) [CW-2915/2019] Madurai v. Commissioner of Income-Tax, Madras [1956]1SCR691 .: In this connection, it is necessary to note that word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies transaction which is real, as for example when sells properties to B but sale deed mentions X as purchaser. Here sale itself is genuine, but real purchaser is B, X being his benamidar. This is class of transactions which is usually termed as benami. But word 'benami' is also occasionally used, perhaps not quite accurately, to refer to sham transaction, as for example, when purports to sell his property to B without intending that his title should cease or pass to B. fundamental difference between these two classes of transactions is that whereas in former there is operative transfer resulting in vesting of title in transferee, in latter there is none such, transferor continuing to retain title notwithstanding execution of transfer deed. It is only in former class of cases that it would be necessary, when dispute arises as to whether person named in deed is real transferee or B, to enquire into question as to who paid consideration for transfer, X or B. But in latter class of cases, when question is whether transfer is genuine or sham, point for decision would be, not who paid consideration but whether any consideration was paid. Buckingham and Carnatic Co.Ltd. vs. Venkatiah and Ors. (supra) 10. Section 73 of Act reads as under : Employer not to dismiss or punish employee during period of sickness, etc. - (108 of 160) [CW-2915/2019] (1) No employer shall dismiss, discharge, or reduce or otherwise punish employee during period employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under regulations, dismiss, discharge or reduce or otherwise punish employee during period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as result of illness duly certified in accordance with regulations to arise out of pregnancy or confinement rendering employee unfit for work. (2) No notice of dismissal or discharge or reduction given to employee during period specified in sub-section (1) shall be valid or operative." Mr. Dolia contends that since this Act has been passed for conferring certain benefits on employees in case of sickness, maternity and employment injury, it is necessary that operative provisions of Act should receive liberal and beneficent construction from court. It is piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe relevant provisions in technical or narrow sense. This position cannot be disputed. But in dealing with plea raised by Mr. Dolia that section should be liberally construed, we cannot overlook fact that liberal construction must ultimately flow from words used in section. If words used in section are capable of two constructions one of which is shown patently to assist achievement of object of Act, courts would be justified in preferring that construction to other which may not be able to further object of Act. But, on other hand, if words used in section are reasonably capable of only one construction and are clearly intractable in regard to construction for which Mr. Dolia contends, doctrine of liberal construction can be of no assistance. 56. In case of Sree Bank Ltd. vs. Sarkar Dutt Roy and Co. (Supra), Supreme Court observed thus: (109 of 160) [CW-2915/2019] 5. Two reasons have operated on my mind to lead me to conclusion that general rule should not be applied in present case. First, it is recognised that general rule is not invariable and that it is sound principle in considering whether intention was that general rule should not be applied, to "look to general scope and purview of statute, and at remedy sought to be applied, and consider what was former state of law and what it was that Legislature contemplated." : see Pardo v. Bingham (1869) L.R. 4 Ch. A. 735. Again in Craies on Statute Law, 6th ed., it is stated at p. 395, "If statute is passed for purpose of protecting public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of vested right." To same effect is observation in Halsbury's Laws of England, 3rd ed., vol. 36 p. 425. This seems to me to be plain commonsense. In ascertaining intention of legislature it is certainly relevant to enquire what Act aimed to achieve. In Pardo v. Bingham L.R(1869)Ch. A. 735 statute which took away benefit of longer period of limitation for suit provided by earlier Act was held to have retrospective operation as otherwise it would not have any operation for fifty years or more in case of persons who were at time of its passing residing beyond seas. It was thought that such extraordinary result could not have been intended. In R. v. Vine (1875) 10 Q.B. 195 words "Every person convicted of felony shall for ever be disqualified from selling spirits by retail.... and if any person shall, after having been so convicted, take out or have any licence to sell spirits by retail, same shall be void to all intents and purposes" were applied to person who had been convicted of felony before Act was passed though by doing so vested rights were affected. Mellor J. observed, (pp. 200-201). "It appears to me to be general object of this statute that there should be restrains as to persons who should be qualified to hold licences, not as punishment, but for public good, upon ground of character... man convicted before Act passed is quite as much tainted as man convicted after; and it appears to me not only possible but natural interpretation of section that any one convicted of felony shall be ipso facto disqualified, and licenses, if granted, void." (110 of 160) [CW-2915/2019] 8. If that is not intention, then it is clear to me that sub-s. (3) need not have been enacted at all for clearly first sub-section would by its own terms have applied to cases of winding up on petition presented before amending Act. It applies to all banking companies being wound up and, therefore, also to such companies as are being wound up on petition presented before that Act. It could be said that even then first sub-section would not have retrospective operation but would only apply prospectively to banking company being wound up on petition presented before Act. This may be illustrated by two cases. In R. v. St. Mary, Whitechapel (Inhabitants) (1848) 12 Q.B. 120 Lord Denman C.J. said that statute "is not properly called retrospective statute because part of requisites for its action is drawn from time antecedent to its passing." Again in Master Ladies Tailors Organisation v. Minister of Labour and National Service (1950) 2 All. F.R. 525 it was observed, "The fact that prospective benefit is in certain cases to be measured by or depends on antecedent facts does not necessarily... make provision retrospective." 57. In case of Rai Bahadur Seth Shreeram Durgaprasad vs. Director of Enforcement (supra), Supreme Court observed thus: 8. contention of learned Counsel that recourse could not be had to amended Section 23(1) read with Section 23C of Act in respect of contravention of Section 12(2) for failure on part of appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under amended Section 23(1) read with Section 23C or levy of penalty on appellants must also fail for another reason. In Sukumar Pyne's case Court reversed decision of Calcutta High Court in Sukumar Pyne v. Union of India and Ors., AIR 1962 Cal 590 striking down Section 23(1)(a) as being violative of Article 14 of Constitution. Regarding point, namely, whether Section 23(1)(a) having been substituted by Amendment Act XXXIX of 1957 would have retrospective operation in respect of alleged offence which took place in 1954, High Court came to (111 of 160) [CW-2915/2019] conclusion that petitioner had vested right to be tried by ordinary court of land with such rights of appeal as were open to all and although Section 23(1)(a) was procedural, where vested right was affected, prima facie, it was not question of procedure. Therefore, High Court came to conclusion that provision as to adjudication by Director of Enforcement could not have any retrospective operation. It was held that 'the impairment of right by putting new restriction thereupon is not matter of procedure only'. It impairs substantive right and enactment that does so is not retrospective unless it says so expressly or by necessary intendment. Court reversed High Court decision and held that effect of these provisions was that after amendment of 1957, adjudication or criminal proceedings could be taken up in respect of contravention mentioned in section 23(1) while before amendment only criminal proceedings before Court could be instituted to punish offender. In repelling contention advanced by Shri N.C. Chatterjee that new amendments did not apply to contravention which took place before Act came into force, Court observed: In our opinion, there is force in contention of learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh (1953) SCR 1188, person accused of commission of offence has no vested right to be tried by particular court or particular procedure except in so far as there is any constitutional objection by way of discrimination or violation of any other fundamental right is involved. It is well recognised that "no person has vested right in any course of procedure" (vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in present case. There is no principle underlying Art. 20 of Constitution which makes right to any course of procedure vested right. (112 of 160) [CW-2915/2019] 58. In case of Nar Bahadur Bhandari and Ors. vs. State of Sikkim and Ors. (supra) , Supreme Court held thus: 10. ..The said Sub-section while on one hand ensures that application of Section 6 of General Clauses Act is not prejudiced, on other it expresses different intention as contemplated by said Section 6. last part of above Sub-section introduces legal fiction whereby anything done or action taken under or in pursuance of Act of 1947 shall be deemed to have been done or taken under or in pursuance of corresponding provisions of Act of 1988. That is, fiction is to effect that Act of 1988 had come into force when such thing was done or action was taken. 11. This aspect of matter was clearly elucidated by Constitution Bench in B. N. Kohli's case (supra). In that case Ordinance 27/49 repealed Ordinance 12/49. relevant provision in repealing Ordinance was sub-sec.(3) of Section 58. That read as follows: "The repeal by this Act of Administration of Evacuee Property Ordinance, 1949 or Hyderabad Administration of Evacuee Property Regulation or of any corresponding law shall not affect previous operation of that Ordinance, Regulation or corresponding law, and subject thereto, anything done or any action taken in exercise of any power conferred by or under that Ordinance, Regulation or corresponding law, shall be deemed to have been done or taken in exercise of powers conferred by or under this Act as if this Act were in force on day on which such thing was done or action was taken." 12. While construing said Sub-section, Court observed as follows: "...By first part of Section 58(3) repeal of statutes mentioned therein did not operate to vacate things done or action taken under those statutes. This provision appears to have been enacted with view to (113 of 160) [CW-2915/2019] avoid possible application of rule of interpretation that where statute expires or is repealed, in absence of provision to contrary, it is regarded as having never existed except as to matters and transactions past and closed: (see Surtees v. Ellison, 1829) 9 B & C 752. This rule was altered by omnibus provision in General Clauses Act, 1897, relating to effect of repeal of statutes by any Central Act or Regulation. By Section 6 of General Clauses Act, it is provided, in so far as it is material, that any Central Act or Regulation made after commencement of General Clauses Act or repeals any enactment, repeal shall not affect previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, occurred or incurred under any enactment so repealed or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed, as if Repealing Act or Regulation had not been passed. But rule contained in Section 6 applies only if different intention does not appear, and by enacting Section 58(3) Parliament has expressed different intention, for whereas General Clauses Act keeps alive previous operation of enactment 13. repealed, and things done and duly suffered, rights, privileges, obligations or liabilities acquired or incurred, and authorities investigation, legal proceeding and remedies in respect of rights, privileges, obligations, liabilities, penalties, forfeitures and punishment and if repealing Act or Regulation had not been passed, Section 58(3) of Act 31 of 1950 directs that things done or actions taken in exercise of power conferred by repealed statutes shall be deemed to be done or taken under repealing Act as if that latter Act were in force on day on which such thing was done or action was taken. rule so enunciated makes clear departure from rules enunciated in Section 6 of General Clauses Act, 1897. By first part of Section 58(3) which is in terms negative, previous operation of repealed statutes survives repeal. Thereby matters and transactions past and closed remain operative; so does previous operation of repealed statute. But as pointed out by this Court in (114 of 160) [CW-2915/2019] Indira Sohanlal's case, [1955]2SCR1117 , saving of previous operation of repealed law is not to be read, as saving future operation of previous law. previous law stands repealed, and it has not for future partial operation as it is prescribed by Section 6 of General Clauses Act. All things done and actions taken under repealed statute are deemed to be done or taken in exercise of powers conferred by or under repealing Act, as if that Act were in force on day on which that thing was done or action was taken. It was clearly intention of parliament that matters and transactions past and closed were not to be deemed vacated by repeal of statute under which they were done. previous operation of statute repealed was also affirmed expressly but things done or actions taken Under repealed statute are to be deemed by fiction to have been done or taken under repealing Act." 59. In case of State of Punjab vs. Mohar Singh: (supra) , Supreme Court observed thus: 8 . These observations could not undoubtedly rank higher than mere obiter dictum for they were not at all necessary for purposes of case, though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman C.J. High Court of Punjab, in its judgment in present case, has observed that where there is simple repeal and Legislature has either not given its thought to matter of prosecuting old offenders, or provision dealing with that question has been inadvertently omitted, section 6 of General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where there has been fresh legislation on subject and if new Act does not deal with matter, it may be presumed that Legislature did not deem it fit to keep alive liability incurred under old Act. In our opinion approach of High Court to question is not quite correct. Whenever there is repeal of enactment, consequences laid down in section 6 of General Clauses Act will follow unless, as section itself says, different intention appears. In case of simple repeal there is scarcely any room for expression of contrary opinion. But when repeal is followed by (115 of 160) [CW-2915/2019] fresh legislation on same subject we would undoubtedly have to look to provisions of new Act, but only for purpose of determining whether they indicate different intention. line of enquiry would be, not whether new Act expressly keeps alive old rights and liabilities but whether it manifests intention to destroy them. We cannot therefore subscribe to broad proposition that section 6 of General Clauses Act is ruled out when there is repeal of enactment followed by fresh legislation. Section 6 would be applicable in such cases also unless new legislation manifests intention incompatible with or contrary to provisions of section. Such incompatibility would have to be ascertained from consideration of all relevant provisions of new law and mere absence of saving clause is by itself not material. It is in light of these principles that we now proceed to examine facts of present case. 60. In case of Zile Singh vs. State of Haryana and Ors.: (supra), Supreme Court held thus: 13. It is cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But rule in general is applicable where object of statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in statute sufficient to show intention of Legislature to affect existing rights, it is deemed to be prospective only. nova Constitution futuris formam imponere debet non praeteritis' - new law ought to regulate what is to follow, not past. (See : Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p.438). It is not necessary that express provision be made to make statute retrospective and presumption against retrospectivity may be rebutted by necessary implication especially in case where new law is made to cure acknowledged evil for benefit of community as whole. (ibid, p.440) 14. presumption against retrospective operation is not applicable to declaratory statutes....... (116 of 160) [CW-2915/2019] In determining, therefore, nature of Act, regard must be had to substance rather than to form. If new Act is "to explain' earlier Act, it would be without object unless construed retrospective. explanatory Act is generally passed to supply obvious omission or to clear up doubts as to meaning of previous Act. It is well settled that if statute is curative or merely declaratory of previous law retrospective operation is generally intended. ........ amending Act may be purely declaratory to clear meaning of provision of principal Act which was already implicit. clarificatory amendment of this nature will have retrospective effect. (ibid, pp.468-469). 15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from language employed. If it is necessary implication from language employed that legislature intended particular section to have retrospective operation, Courts will give it such operation. In absence of retrospective operation having been expressly given, Courts may be called upon to construe provisions and answer question whether legislature had sufficiently expressed that intention giving Statute retrospectivity. Four factors are suggested as relevant: (i) general scope and purview of , statute; (ii) remedy sought to be applied; (iii) former state of law; and (iv) what it was legislature contemplated (p.388). rule against retrospectivity does not extend to protect from effect of repeal, privilege which did not amount to accrued right (p.392). 16. Where Statute is passed for purpose of supplying obvious omission in former statute or to 'explain' former statute, subsequent statute has relation back to time when prior Act was passed. rule against retrospectivity is inapplicable to such legislations as are explanatory and declaratory in nature. classic illustration is case of Att. Gen. v. Pougett [1816] 2 Pri 381. By Customs Act of 1873 (117 of 160) [CW-2915/2019] 53 Geo. 3 duty was imposed upon hides of 9s. 4d., but Act omitted to state that it was to be 9s. 4d. per cwt., and to remedy this omission another Customs Act (53 Geo. 3, c. 105) was passed later in same year. Between passing of these two Acts some hides were exported, and it was contended that they were not liable to pay duty of 9s. 4d. per cwt., but Thomson C.B., in giving judgment for Attorney- General, said: "The duty in this instance was in fact imposed by first Act, but gross mistake of omission of weight for which sum expressed was to have been payable occasioned amendment made by subsequent Act, but that had reference to former statute as soon as it passed, and they must be taken together as if they were one and same Act." (p.395). 17. Maxwell states in his work on Interpretation of Statutes, (Twelfth Edition) that rule against retrospective operation is presumption only, and as such it "may be overcome, not only by express words in Act but also by circumstances sufficiently strong to displace it." (p.225). If dominant intention of legislature can be clearly and doubtlessly spelt out, inhibition contained in rule against perpetuity becomes of doubtful applicability as "inhibition of rule" is matter of degree which would "vary secundum materiam" (p.226). Sometimes, where sense of statute demands it or where there has been obvious mistake in drafting, court will be prepared to substitute another word or phrase for that which actually appears in text of Act (p.231). 18. In recent decision of this Court in National Agricultural Cooperative Marketing Federation of India Ltd. And Anr. v. Union of India and Ors., (2003)181CTR(SC)1 , it has been held that there is no fixed formula for expression of legislative intent to give retrospectivity to enactment. Every legislation whether prospective or retrospective has to be subjected to (118 of 160) [CW-2915/2019] question of legislative competence. retrospectivity is liable to be decided on few touchstones such as : (i) words used must expressly provide or clearly imply retrospective operation; (ii) retrospectivity must be reasonable and not excessive or harsh, otherwise it runs risk of being struck down as unconstitutional; (iii) where legislation is introduced to overcome judicial decision, power cannot be used to subvert decision without removing statutory basis of decision. There is no fixed formula for expression of legislative intent to give retrospectivity to enactment. validating clause coupled with substantive statutory change is only one of methods to leave actions unsustainable under unamended statute, undisturbed. Consequently, absence of validating clause would not by itself affect retrospective operation of statutory provision, if such retrospectivity is otherwise apparent. 19. Constitution Bench in Shyam Sunder and Ors. v. Ram Kumar and Anr., AIR2001SC2472 , has held -- " Ordinarily when enactment declares previous law, it requires to be given retroactive effect. function of declaratory statute is to supply omission or explain previous statute and when such Act is passed, it comes into effect when previous enactment was passed. legislative power to enact law includes power to declare what was previous law and when such declaratory Act is passed invariably it has been held to be retrospective. Mere absence of use of word 'declaration' in Act explaining what was law before may not appear to be declaratory Act but if Court finds Act as declaratory or explanatory it has to be construed as retrospective. " (p. 2487). (119 of 160) [CW-2915/2019] 20. In Bengal Immunity Company Ltd. v. State of Bihar and Ors.,[1955]2SCR603 , Heydon's case 3 C. R.7a; 76 E.R.637 was cited with approval. Their Lordships have said -- "It is sound rule of construction of statute firmly established in England as far back as 1584 when Heydon's case was decided that --"......for sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of common law) four things are to be discerned and considered:- 1st. What was common law before making of Act. 2nd. What was mischief and defect for which common law did not provide., 3rd. What remedy Parliament hath resolved and appointed to cure disease of Commonwealth., and 4th. true reason of remedy; and then office of all judges is always to make such construction as shall suppress mischief, and advance remedy, and to suppress subtle inventions and evasions for continuance of mischief, and pro private commodo, and to add force and life to cure and remedy, according to true intent of makers of Act, pro bono publico"." 22. State Legislature of Haryana intended to impose disqualification with effect from 5.4.1994 and that was done. Any person having more than two living children was disqualified on and from that day for being member of municipality. However, while enacting proviso by way of exception carving out fact- situation from operation of newly introduced disqualification draftsman's folly caused creation of trouble. simplistic reading of text of proviso spelled out consequence which Legislature had never intended and could not have intended. It is true that Second Amendment does not expressly give amendment retrospective (120 of 160) [CW-2915/2019] operation. absence of provision expressly giving retrospective operation to legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that amendment was necessarily intended to have retrospective effect and if Court can unhesitatingly conclude in favour of retrospectivity, Court would not hesitate in giving Act that operation unless prevented from doing so by any mandate contained in law or established principle of interpretation of statutes. 23. text of Section 2 of Second Amendment Act provides for word "upto" being substituted for word "after". What is meaning and effect of expression employed therein - "shall be substituted". 24. substitution of one text for other pre- existing text is one of known and well-recognised practices employed in legislative drafting. 'Substitution' has to be distinguished from 'supersession' or mere repeal of existing provision. 25. Substitution of provision results in repeal of earlier provision and its replacement by new provision (See Principles of Statutory Interpretation, ibid, p.565). If any authority is needed in support of proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. v. State of U.P. and Ors. - : [2002]1SCR897 , State of Rajasthan v. Mangilal Pindwal - : (1997)IILLJ756SC , Koteswar Vittal Kamath v. K. Rangappa Baliga and Co. - [1969]3SCR40 and A.L.V.R.S.T. Veerappa Chettiar v. S. Michael and Ors. - AIR1963SC933 . In West U.P. Sugar Mills Association and Ors.'s case (supra) three-Judges Bench of this Court held that State Government by substituting new rule in place of old one never intended to keep alive old rule. Having regard to totality of circumstances centering around issue Court held that substitution had effect of just deleting old rule and making new rule operative. In Mangilal Pindwal's case (supra) this Court upheld legislative practice of amendment by substitution being incorporated in text of statute which had ceased to exist and held that substitution would have effect of amending operation of law during period in which it was in force. In Koteswar's case (supra) three-Judges Bench of this Court emphasized (121 of 160) [CW-2915/2019] distinction between 'supersession' of rule arid 'substitution' of rule and held that process of substitution consists of two steps : first, old rule is made to cease to exist and, next, new rule is brought into existence in its place. 61. In case of Yogendra Kumar Jaiswal and Ors. vs. State of Bihar and Ors. : (supra), Supreme Court observed thus: 8. Section 14 provides for issuance of show cause notice by Authorised Officer to person concerned to explain his source of income and other assets and why such money or property or both should not be declared to have been acquired by means of offence and be confiscated to State Government. Sub-section (2) provides that where notice Under Sub-section (1) to any person specifies any money or property or both has been held on behalf of such person by any other person, copy of notice shall also be served upon such other person. Sub-section (3) lays down that evidence, information or particulars brought on record before authorised officer shall not be used against accused in trial before special court. Section 15 deals with confiscation of property in certain cases. It provides detailed procedure and obliges authorised officer to follow principles of natural justice. It prescribes time limit for disposal of proceeding and gives immense stress on identification of property or money or both which have been acquired by means of offence and further it makes confiscation subject to order passed in appeal Under Section 17 of Orissa Act. It may be noted here that proviso to Section 15(3) stipulates that market price of property confiscated, if deposited with Authorised Officer, property shall not be confiscated. Section 16 lays down that after issue of notice Under Section 14, any money or property or both referred to in said notice are transferred by any mode whatsoever, such transfer shall for purposes of proceedings under Orissa Act, be void and if such money or property or both are subsequently confiscated to State Government Under Section 15, then transfer of such money or property or both shall be deemed to be null and void. Section 17(1) enables aggrieved (122 of 160) [CW-2915/2019] person by order passed by authorised officer to prefer appeal within thirty days from date on which order appealed against was passed. Sub- section (2) provides that upon appeal being preferred under said provision, High Court may, after giving such parties, as it thinks proper, opportunity of being heard, pass such order as it thinks fit; Sub- section (3) requires High Court to dispose of appeal within three months from date it is preferred and stay order, if any, passed in appeal shall not remain in force beyond period prescribed for disposal of appeal. Sub-section (1) of Section 18 of Orissa Act empowers State Government to take possession. It stipulates that where any money or property has been confiscated to State Government under Act, concerned authorised officer shall order person affected as well as any other person who may be in possession of money or property or both, to surrender or deliver possession thereof to concerned authorised officer or to any person duly authorised by in this behalf, within thirty days of service of order. proviso to said Sub-section stipulates that authorised officer, on application being made in that behalf and being satisfied that person affected is residing in property in question, may instead of dispossessing him immediately from same, permit such person to occupy it for limited period to be specified on payment of market rent to State Government and thereafter, such person shall deliver vacant possession of property. Sub- section (2) provides that if any person refuses or fails to comply with order made Under Sub-section (1), authorised officer may take possession of property and may, for that purpose, use such force as may be necessary. Sub-section (3) confers powers on authorised officer to requisition service of any police officer to assist and mandates concerned police officer to comply with such requisition. Section 15. Confiscation of property in certain cases - (1) (2) . (3) Where authorised officer records finding under this section to effect that any money or property or both have been acquired by means of offence, he shall declare that such money or property or both shall, subject to provisions of this Act, (123 of 160) [CW-2915/2019] stand confiscated to State Government free from all encumbrances. Provided that if market price of property confiscated is deposited with authorised officer, property shall not be confiscated. (4) ... (5) (6) ... 147. next facet of said submission pertains to retrospective applicability. submission has been put forth on ground that by transfer of cases to Special Courts under Orissa Act in respect of accused persons who are arrayed as accused under 1988 Act, have been compelled to face harsher punishment which is constitutionally not permissible. It is contended that there was no interim confiscation under 1988 Act but under Orissa Act they have to face confiscation. We have already opined that confiscation is not punishment and, therefore, Article 20(1) is not attracted. Thus, real grievance pertains to going through process of confiscation and suffering same after ultimate adjudication of said proceeding which is subject to appeal. .. . 151. We are absolutely conscious that said judgment was delivered in different context. What is prohibited Under Article 20(1) is imposition of greater punishment that might have been imposed and prohibition of conviction of any person for violation of law at time of commission of act. We repeat at cost of repetition that confiscation being not punishment does not come in either of categories. Thus viewed, property of accused facing trial under 1988 Act could be attached and there can be administration by third party of said property and eventual forfeiture after conviction. term "attachment" has been understood by this Court in Kerala State Financial Enterprises Ltd. v. Official Liquidator, High Court of Kerala (2006) 10 SCC 709 in following manner: 11. word "attachment" would only mean "taking into custody of law person or property of one already before court, or of one whom it is sought to bring before it". It is used for (124 of 160) [CW-2915/2019] two purposes: (i) to compel appearance of Defendant; and (ii) to seize and hold his property for payment of debt. It may also mean prohibition of transfer, conversion, disposition or movement of property by order issued by court. 152. legislature has thought it proper to change nature and character of interim measure. property obtained by ill-gotten gains, ii prima facie found to be such by authorised officer, is to be confiscated. accused has no vested right as regards interim measure. He is not protected by any constitutional right to advance plea that he cannot be made liable to face confiscation proceedings of property which has been accumulated, by illegal means. That being litmus test, filament of reasoning has to rest in favour of confiscation and not against it. Therefore, we are of considered view that provision does not violate any constitutional assurance. 62. In case of Titaghur Paper Mills Co. Ltd. and Ors. vs. State of Orissa and Ors.: (supra), Supreme Court, observed thus: 6. We are constrained to dismiss these petitions on short ground that petitioners have equally efficacious alternative remedy by way of appeal to prescribed authority under Sub-section (1) of Section 23 of Act, then second appeal to Tribunal under Sub-section (3)(a) thereof, and thereafter in event petitioners get no relief, to have case stated to High Court under Section 23 of Act. In Raleigh Investment Co. Limited v. Governor General in Council, 74 I.A. 50 Lord Uthwart, J. in delivering judgment of Board observed that in provenance of tax where Act provided for complete machinery which enabled assessee to effectively to raise in courts question of validity of assessment denied alternative jurisdiction to High Court to interfere. It is true that decision of Privy Council in Raleigh Investment Company's case, supra, was in relation to suit brought for declaration that assessment made by (125 of 160) [CW-2915/2019] Income Tax Officer was nullity, and it was held by Privy Council that assessment made under machinery provided by Act, even if based on provision subsequently held to be ultra vires, was not nullity like order of court lacking jurisdiction and that Section 67 of Income Tax Act, 1922 operated as bar to maintainability of such suit. In dealing with question whether Section 67 operated as bar to suit to set aside or modify assessment made under provision of Act which is ultra vires, Privy Council observed: In construing section it is pertinent, in their Lordships opinion to ascertain whether Act contains machinery which enables assessee effectively to raise in courts question whether particular provision of Income Tax Act bearing on assessment made is or is not ultra vires. presence of such machinery, though by no means conclusive, marches with construction of section which denies alternative jurisdiction to inquire into same subject-matter. 7. We are not oblivious of fact that this Court in K.S. Venkataraman and Co. v. State of Madras, [1966]60ITR112(SC) , in five-Judge Bench by majority of 3 : 2 has dissented with view expressed by Privy Council in Raleigh Investment Company's case, supra, and held that assessment made on basis of provision which is ultra vires is not assessment made under Act. It was observed that entire reasoning of Judicial Committee was based upon assumption that question of ultra vires can be canvassed and finally decided through machinery provided under Income Tax Act. majority observed that hierarchy of authorities set up under Act being creatures of statute were not concerned as to whether provisions of Act were intra vires or not. If assessee raises such question, according to decision of majority in Venkataraman's case, supra, Appellate Tribunal can only reject it on ground that it has no jurisdiction to entertain such objection or render any decision on it. As no such question can be raised or can even arise out of order of Appellate Tribunal, High Court cannot possibly give any decision on question of ultra vires because its jurisdiction under Section 66 is special advisory jurisdiction and its scope is strictly (126 of 160) [CW-2915/2019] limited. It can only decide questions of law that arise out of order of Appellate Tribunal and that are referred to it. Further, appeal to this Court under Section 66A(2) does not enlarge scope of jurisdiction of this Court as this Court can only do what High Court can under Section 66. It would therefore appear that majority decision in Venkataraman's case, supra, rests on principle that (i) ultra vires provision cannot be regarded as part of Act at all, and assessment under such provision is not "made under Act" but is wholly without jurisdiction and is not directed by Section 67 of Act. And (ii) question whether provision is ultra vires or not cannot be decided by any of authorities created by Act and therefore cannot be subject matter of reference to High Court or subsequent appeal to this Court. 8. No such question arises in case like present where impugned orders of assessment are not challenged on ground that they are based on provision which is ultra vires. We are dealing with case in which entrustment of power to assess is not in dispute, and authority within limits of his power is Tribunal of exclusive jurisdiction. challenge is only to regularity of proceeding before learned Sales Tax Officer as also his authority to treat gross turnover returned by petitioners to be taxable turnover. Investment of authority to tax involves authority to tax transactions which in exercise of his authority Taxing Officer regards as taxable, and not merely authority to tax only those transactions which are, on true view of facts and law, taxable. 63. In case of Thansingh Nathmal and Ors. vs. A. Mazid : (supra), Supreme Court held thus: 7. Against order of Commissioner order for reference could have been claimed if appellants satisfied Commissioner or High Court that question of law arose out of order. But procedure provided by Act to invoke jurisdiction of High Court was bypassed. appellants moved High Court challenging competence of Provincial Legislature to extend concept of sale, and (127 of 160) [CW-2915/2019] invoked extraordinary jurisdiction of High Court under Art. 226 and sought to reopen decision of taxing authorities on questions of fact. jurisdiction of High Court under Art. 226 of Constitution is couched in wide terms and exercise thereof is not subject to any restrictions except territorial restrictions which are expressly provided in Article. But exercise of jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. very amplitude of jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort so that jurisdiction is not intended as alternative remedy for relief which may be obtained in suit or other mode prescribed by statute. Ordinarily Court will not entertain petition for writ under Art. 226, where petitioner has alternative remedy which, without being unduly onerous, provides equally efficacious remedy. Again High Court does not generally enter upon determination of questions which demand elaborate examination of evidence to establish right to enforce which writ is claimed. High Court does not therefore act as court of appeal against decision of court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon alternative remedy provided by statute for obtaining relief. Where it is open to aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in manner provided by statute, High Court normally will not permit, by entertaining petition under Art. 226 of Constitution, machinery created under stature to be by-passed, and will leave party applying to it to seek resort to machinery so set up. 64. In case of State of H.P. and Ors. vs. Gujarat Ambuja Cement Ltd. and Ors.: (supra), Supreme Court observed thus: 17. We shall first deal with plea regarding alternative remedy as raised by appellant-State. Except for period when Article 226 was amended by Constitution (42 Amendment) Act, 1976, power relating to alternative remedy has been considered to be rule of self imposed limitation. It is essentially (128 of 160) [CW-2915/2019] rule of policy, convenience and discretion and never rule of law. Despite existence of alternative remedy it is within jurisdiction of discretion of High Court to grant relief under Article 226 of Constitution. At same time, it cannot be lost sight of that though matter relating to alternative remedy has nothing to do with jurisdiction of case, normally High Court should not interfere if there is adequate efficacio4us alternative remedy. If somebody approaches High Court without availing alternative remedy provided High Court should ensure that he has made out strong case or that there exist good grounds to invoke extra-ordinary jurisdiction. 18. Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors. [1954]25ITR167(SC) ; Sangram Singh v. Election Tribunal, Kotah and Ors. [1955]2SCR1 ; Union of India v. T.R. Varma (1958)IILLJ259SC ; State of U.P. and Ors. v. Mohammad Nooh AIR 1958 SC 86; and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras [1966]60ITR112(SC) , held that Article 226 of Constitution confers on all High Courts very wide power in matter of issuing writs. However, remedy of writ is absolutely discretionary remedy and High Court has always discretion to refuse to grant any writ if it is satisfied that aggrieved party can have adequate or suitable relief elsewhere. Court, in extraordinary circumstances, may exercise power if it comes to conclusion that there has been breach of principles of natural justice or procedure required for decision has not been adopted. 19. Another Constitution Bench of this Court in State of Madhya Pradesh and Anr. v. Bhailal Bhai etc. , [1964]6SCR261 , held, that remedy provided in writ jurisdiction is not intended to supersede completely modes of obtaining relief by action in civil court or to deny defence legitimately open in such actions. power to give relief under Article 226 of Constitution is discretionary power. Similar view has been re-iterated in N.T. Veluswami Thevar v. G. Raja Nainar and Ors. AIR1959SC422 ; Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr. [1965]2SCR653 ; Siliguri Municipality and Ors. v. Amalendu Das and Ors. [1984]146ITR624(SC) ; S.T. (129 of 160) [CW-2915/2019] Muthusami v. K. Natarajan and Ors. [1988]2SCR759 ; R.S.R.T.C. and Anr. v. Krishna Kant and Ors. : (1995)IILLJ728SC ; Kerala State Electricity Board and Anr. v. Kurjen E. Kalathil and Ors. AIR2000SC2573 ; A. Venkatasubbiah Naidu v. S. Chekkappan and Ors. : AIR2000SC3032 ; and L.L. Sudhakar Reddy and Ors. v. State of Andhra Pradesh and Ors. AIR2001SC3205 ; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. : AIR2001SC3982 ; Pratap Singh and Anr. v. State of Haryana AIR2002SC3385 and G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (2003)179CTR(SC)11 . 20. In Harbans Lal Sahnia v. Indian Oil Corporation Ltd : AIR2003SC2120 , this Court held that rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion and Court must consider pros and cons of case and then may interfere if it comes to conclusion that petitioner seeks enforcement of any of fundamental rights; where there is failure of principles of natural justice or where orders or proceedings are wholly without jurisdiction or vires of Act is challenged. 22. In G. Veerappa Pillai v. Raman & Raman Ltd. [1952]1SCR583 ; Assistant Collector of Central Excise v. Dunlop India Ltd. 1985ECR4(SC); Ramendra Kishore Biswas v. State of Tripura (1999)IILLJ192SC ; Shivgonda Anna Patil and Ors. v. State of Maharashtra and Ors. AIR1999SC2281; C.A. Abraham v. I.T.O. Kottayam and Ors. [1961]41ITR425(SC); Titaghur Paper Mills Co. Ltd. v. State of Orissa and Anr. [1983]142ITR663(SC); H.B. Gandhi v. Gopinath and Sons; Whirlpool Corporation v. Registrar of Trade Marks and Ors. AIR1999SC22; Tin Plate Co. of India Ltd. v. State of Bihar and Ors. AIR1999SC74; Sheela Devi v. Jaspal Singh AIR1999SC2859 and Punjab National Bank v. O.C. Krishnan and Ors. AIR2001SC3208 , this Court held that where hierarchy of appeals is provided by statute, party must exhaust statutory remedies before resorting to writ jurisdiction. 23. Where under statute there is allegation of infringement of fundamental rights or when on undisputed facts taxing authorities are shown to have assumed jurisdiction which they do not possess (130 of 160) [CW-2915/2019] can be grounds on which writ petitions can be entertained. But normally, High Court should not entertain writ petitions unless it is shown that there is something more in case, something going to root of jurisdiction of officer, something which would show that it would be case of palpable injustice to writ petitioner to force him to adopt remedies provided by statute. It was noted by this Court in L. Hirday Narain v. Income Tax Officer, Bareilly [1970]78ITR26(SC) that if High Court had entertained petition despite availability of alternative remedy and heard parties on merits it would be ordinarily unjustifiable for High Court to dismiss same on ground of non exhaustion of statutory remedies; unless High Court finds that factual disputes are involved and it would not be desirable to deal with them in writ petition. 65. In case of Commissioner of Income Tax and Ors. vs. Chhabil Dass Agarwal: (supra), Supreme Court observed thus: 13. In Nivedita Sharma v. Cellular Operators Assn. of India (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by statute, party must exhaust statutory remedies before resorting to writ jurisdiction for relief and observed as follows: 12. In Thansingh Nathmal v. Supdt. of Taxes AIR 1964 SC 1419 this Court adverted to rule of self- imposed restraint that writ petition will not be entertained if effective remedy is available to aggrieved person and observed: (AIR p. 1423, para 7). 7. ... High Court does not therefore act as court of appeal against decision of court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon alternative remedy provided by statute for obtaining relief. Where it is open to aggrieved Petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in manner provided by statute, High Court normally will not (131 of 160) [CW-2915/2019] permit by entertaining petition under Article 226 of Constitution machinery created under statute to be bypassed, and will leave party applying to it to seek resort to machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) 11. ... It is now well recognised that where right or liability is created by statute which gives special remedy for enforcing it, remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford 141 ER 486 in following passage: (ER p. 495) ... There are three classes of cases in which liability may be established founded upon statute. ... But there is third class viz. where liability not existing at common law is created by statute which at same time gives special and particular remedy for enforcing it. ...The remedy provided by statute must be followed, and it is not competent to party to pursue course applicable to cases of second class. form given by statute must be adopted and adhered to. rule laid down in this passage was approved by House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532 (PC) and Secy. of State v. Mask and Co. AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. High Court was therefore justified in dismissing writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India(1997) 5 SCC 536 B.P. Jeevan Reddy, J. (132 of 160) [CW-2915/2019] (speaking for majority of larger Bench) observed: (SCC p. 607, para 77) 77. ... So far as jurisdiction of High Court under Article 226--or for that matter, jurisdiction of this Court under Article 32--is concerned, it is obvious that provisions of Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising power under Article 226/Article 32, Court would certainly take note of legislative intent manifested in provisions of Act and would exercise their jurisdiction consistent with provisions of enactment. 16. In instant case, Act provides complete machinery for assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by Revenue Authorities, and Assessee could not be permitted to abandon that machinery and to invoke jurisdiction of High Court under Article 226 of Constitution when he had adequate remedy open to him by appeal to Commissioner of Income Tax (Appeals). remedy under statute, however, must be effective and not mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana (1985) 3 SCC 267 this Court has noticed that if appeal is from "Caesar to Caesar's wife" existence of alternative remedy would be mirage and exercise in futility. 66. In case of Harbanslal Sahnia and Ors. vs. Indian Oil Corpn. Ltd. and Ors. (supra), Supreme Court held thus: 7. So far as view taken by High Court that remedy by way of recourse to arbitration clause was available to appellants and therefore writ petition filed by appellants was liable to be dismissed, suffice it to observe that rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion and not one of compulsion. In appropriate case in spite of availability of alternative remedy, High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where writ petition seeks (133 of 160) [CW-2915/2019] enforcement of any of Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where orders or proceedings are wholly without jurisdiction or vires of Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., AIR1999SC22 . present case attracts applicability of first two contingencies. Moreover, as noted, petitioners' dealership, which is their bread and butter came to be terminated for irrelevant and non-existent cause. In such circumstances, we feel that appellants should have been allowed relief by High Court itself instead of driving them to need of initiating arbitration proceedings. 67. In case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Ors.: (supra) , Supreme Court held thus: 51. It is in background of above provisions that question relating to jurisdiction of "Registrar" and "High Court", which individually and separately constitute "TRIBUNAL" within meaning of Section 2(1)(x), has to be considered. 52. functions and extent of jurisdiction of registrar and that of High Court which, incidentally, has also been constituted as appellate authority of Registrar, have been distinctly set out in different provisions of Act. There are, however, certain matters for which jurisdiction has been given to "TRIBUNAL" which, by its definition, includes "High Court" and "Registrar" and therefore, question is "can both be said to have "concurrent" jurisdiction over matters as are set out for example, in Sections 9, 10, 26, 45, 46, 47 and 56". 53. If proceeding is cognisable both by Registrar and High Court, which of two will have jurisdiction to entertain such proceeding to exclusion of other or jurisdiction being concurrent, can proceeding go on simultaneously before High Court and Registrar, resulting, may be, in conflicting decisions at end, is question which seems to be answered by words "before which proceeding concerned is pending" occurring (134 of 160) [CW-2915/2019] in definition of "TRIBUNAL" in Section 2(1)(x) of Act. Let us test whether answer is correct. 54. Section 56 contemplates proceedings of varying nature. proceedings contemplated by Sub-section (1) relate to cancellation of Trade Mark or varying registration of Trade Mark, on ground that condition on which registration was granted, was either violated or there was failure in observing condition of registration. These proceedings may be entertained either by High Court or Registrar on application, and, at instance, of "person aggrieved". 55. proceedings contemplated by Sub-section (2) of Section 56 relate to absence or omission of entry in Register or entry having been made without sufficient cause or entry wrongly remaining on Register or there being any error or defect in entry in Register. Such proceedings may also be entertained either by Registrar or High Court on application made in prescribed manner by "person aggrieved". High Court or registrar may, in these proceedings, pass order either for making entry, or expunging or varying entry. In these proceedings which may be pending either before High court or Registrar, it would be open to either of them to decide any further question which may be necessary or expedient to decide in connection with rectification of Register. Obviously, this gives very wide jurisdiction to High Court or Registrar working as Tribunal as jurisdiction is not limited to proceedings pending under Sub-section (1) or Sub-section (2) but extends also to decide, in same proceedings, any other question which may legitimately arise in connection with rectification proceedings. 56. jurisdiction conferred on High Court or Registrar under Sub-section (1) or Sub-section (2) can also be exercised suo motu subject to condition that notice is issued to parties concerned and opportunity of hearing is given to them before passing any order contemplated by Subsection (1) or Sub- section (2). 57. Registrar and High Court have also been given jurisdiction under this Section to order that (135 of 160) [CW-2915/2019] Trade Mark registered in Part shall be shifted to Part B of Register. 58. order of rectification, if passed by High Court, is implemented by Registrar by rectifying Register in conformity with order passed by High Court. 59. extent of jurisdiction conferred by Section 56 on Registrar to rectify Register, is, however curtailed by Section 107 which provides that application for rectification shall, in certain situations, be made only to High Court. These situations are mentioned in Sub-section (1) of Section 107, namely, where in suit for infringement of registered Trade Mark, validity of registration is questioned by defendant or defendant, in that suit, raises defence contemplated by Section 30(1)(d) in which acts which do not constitute infringement, have been specified, and plaintiff in reply to this defence questions validity of defendant's Trade Mark. In these situations, validity of registration of Trade Mark can be determined only by High Court and not by Registrar. 60. Section 107 thus impels proceedings to be instituted only in High Court. jurisdiction of Registrar in those cases which are covered by Section 107 is totally excluded. Significantly, Section 107(2) provides that if application for rectification is made to registrar Under Section 46 or Section 47(4) or Section 56, Registrar may, if he thinks fit, refer that application, at any stage of proceeding, to High Court. 61. Similarly, Under Section 111 of Act, in pending suit relating to infringement of Trade Mark, if it is brought to notice of Court that any rectification proceedings relating to plaintiffs or defendant's trade Mark are pending either before Registrar or High Court, proceedings in suit shall be stayed pending final decision of High Court or Registrar. Even if such proceedings are not pending either before Registrar or High Court, trial court, if pritna facie satisfied that plea regarding invalidity of plaintiff s or defendant's Trade Mark is tenable, may frame issue and adjourn case for three months to enable party concerned to (136 of 160) [CW-2915/2019] apply to High Court for rectification of Register. If within three months, party concerned does not approach High Court, plea regarding invalidity of Trade Mark would be treated as abandoned but if such application has been given hearing,, suit would be stayed awaiting final decision of High Court. finding of High Court would bind parties and issue relating to invalidity of Trade Mark would be decided in terms of those findings. 62. In this background, phrase "before which proceeding concerned is pending" stands out prominently to convey idea that if proceeding is pending before "Registrar", it becomes "TRIBUNAL" Similarly, if proceeding is pending before "High Court", then High Court has to be treated as "TRIBUNAL". Thus, jurisdiction of Registrar and High Court, though apparently concurrent in certain matters, is mutually exclusive. That is to say, if particular proceeding is pending before registrar, any other proceeding, which may, in any way, relate to pending proceeding, will have to be initiated before and taken up by Registrar and High Court will act as Appellate Authority of Registrar Under Section 109: It is obvious that if proceedings are pending before High Court, registrar will keep his hands off and not touch those or any other proceedings which may, in any way, relate to those proceedings, as High Court, which has to be High Court having jurisdiction as set out in Section 3, besides being Appellate Authority of Registrar has primacy over Registrar in all matters under Act. Any other interpretation of definition of "TRIBUNAL" would not be in consonance with scheme of Act or contextual background set out therein and may lead to conflicting decision on same question by Registrar and High Court besides generating multiplicity of proceedings. 63. Learned counsel for respondent - Chinar Trust, at this stage, invoked Rule of Punctuation in English Grammar and contended that definition of "TRIBUNAL" is amply clear and requires no interpretative exercise as there is distinction between "Registrar" and "High Court" inasmuch as Registrar will have jurisdiction irrespective of pendency of any proceeding, High Court will have jurisdiction only when "proceeding concerned is (137 of 160) [CW-2915/2019] pending before it. This he tried to show by pointing out that words "as case may be" are placed between two commas, one at beginning immediately after word "Registrar" and other at end, with result that words "Tribunal means Registrar" stand out distinctly, while words "High Court before which proceeding concerned is pending" stand out separately as independent phrase. It is contended that words "before which proceeding concerned is pending" will not be applicable to Registrar and, therefore, Registrar can exercise jurisdiction Under Section 56 irrespective of pendency of any "proceeding". 68. In case of Vodafone International Holdings B.V. vs. Union of India (UOI) and Ors.: (supra) , Supreme Court held thus: 3. In facts and circumstances of this case, thus, we are of opinion that question in regard to jurisdictional issue, may be determined, by authority concerned as preliminary issue, in terms of decision of this Court in Management of Express Newspapers (Private) Ltd., Madras v. Workers and Ors. (1962)IILLJ227SC , Wherein this Court has held as under: (15) High Court undoubtedly has jurisdiction to ask Industrial Tribunal to stay its hands and to embark upon preliminary enquiry itself. jurisdiction of High Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for High Court to adopt such course unless ends of justice seen to makes is necessary to do so? Normally, questions of fact, though they may be jurisdictional facts decision of which depends upon appreciation of evidence, should, be left to be tried by Special Tribunals constituted for that purpose. If and after Special Tribunals try preliminary issue in respect of such jurisdictional facts, it would be open to aggrieved party to take that matter before High Court by writ petition and ask for appropriate writ. Speaking generally, it would not be proper or appropriate that initial jurisdiction of Special Tribunal to deal with these jurisdictional facts should be circumvented and decision of such preliminary issue brought before High Court in its writ (138 of 160) [CW-2915/2019] jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule; whether or not even preliminary facts should be tried by High Court in writ petition, must naturally depend upon circumstances of each case and upon nature of preliminary issue raised between parties. Having regard to circumstances of present dispute, we think Court of Appeal was right in taking view that preliminary issue should more appropriately be dealt with by Tribunal. Appeal Court has made it clear that any party who feels aggrieved by finding of Tribunal on this preliminary issue may move High Court in accordance with law. Therefore, we are not prepared to accept Mr. Shastri's argument that appeal Court was wrong in reversing conclusion of Trial Judge in so far as Trial Judge proceeded to deal with question as to whether action of appellant was closure or lockout. 69. In case of Management of Express Newspapers Ltd. vs. Workers and Staff Employed under it and Ors.: , (supra) Supreme Court held thus: 6 ..In regard to main point of controversy between parties as to validity of reference itself, Appeal Court took view that questions which had to be decided in dealing with appellant's contention that reference was invalid, were complex questions of fact and that it would be appropriate that said questions should be fully investigated and tried in first instance by Industrial Tribunal itself. In other words, Appeal Court held that though High Court had jurisdiction to entertain application for writ of Prohibition even at initial stage of proceedings commenced before Special Tribunal, it would not be proper that writ of prohibition should be issued unless disputed questions of fact were tried by said Special Tribunal in first instance. On this view, order passed by trial Judge has been modified and disputes referred to Industrial Tribunal for its adjudication have been remitted to said Tribunal for its disposed in accordance with law. In making this Order, Appeal Court has indicated nature of dispute and questions of fact which Industrial Tribunal may have to try and limits of its jurisdiction. In (139 of 160) [CW-2915/2019] result, writ apple No. 73/1959 succeeded whereas writ appeal No. 85/1959 failed. It is this decision of Court of Appeal that is challenged before us by Mr. Viswanatha Sastri on behalf of appellant. 15. High Court undoubtedly has jurisdiction to ask Industrial Tribunal to stay its hands and to embark upon preliminary enquiry itself. jurisdiction of High Court to adopt this course cannot be, and is indeed not, disputed. But would it be proper for High Court to adopt such course unless ends of justice seem to make it necessary to do so ? Normally, questions of fact, though they may be jurisdictional facts decision of which depends upon appreciation of evidence, should be left to be tried by Special Tribunals constituted for that purpose. If and after Special Tribunals try preliminary issue in respect of such jurisdictional facts, it would be open to aggrieved party to take that matter before High Court by writ petition and ask for appropriate writ. Speaking generally, it would not be proper or appropriate that initial jurisdiction of Special Tribunal to deal with these jurisdictional facts should be circumvented and decision of such preliminary issue be brought before High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule; whether or not even preliminary fact should be tried by High Court in write petition, must naturally depend upon circumstances of each case and upon nature of preliminary issue raised between parties. Having regard to circumstances of present dispute, we think Court of Appeal was right in taking view that preliminary issue should more appropriately dealt with by Tribunal. Appeal Court has made it clear that any party who feels aggrieved by finding of Tribunal on this preliminary issue may move High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastri's argument that Appeal Court was wrong in reversing conclusion of trial Judge in so for as Trial Judge proceeded to deal with question as to whether action of appellant was closure or lockout. (140 of 160) [CW-2915/2019] 70. In Raghuvinder Singh Vs Dy. Commissioner Of Income Tax, (Benami Transaction) And Initiating Officer (supra ) Under Prevention Of Benami Transaction Act 2016, this Court observed thus: Grounds have been raised regarding non-compliance of principles of natural justice as well as non-compliance of provisions contained under Benami Transaction (Prohibition) Act, 1988, specially Section 24 with regard to service of notice and also with regard to application of mind relating to order of approval. Having noted aforesaid, this Court finds that it would not be appropriate for this Court at this stage to examine veracity and legality of notice of attachment issued way back as on 22/12/2017 as of now as matter is already pending before adjudicating authority. However, all objections, which petitioner has raised before this Court, can be taken up by him before adjudicating authority and it would be for adjudicating authority to decide and examine all objections and pass reasoned order. It is expected from adjudicating authority to give reasonable time to petitioner to put up his objections in writing and examine entire issue thread-bear after giving fair opportunity to all parties. 71. In Great Pacific General Trading Company (Limited Liability Partnership), Vs. Union of India, Through Secretary, Ministry of Finance, Department of Revenue, (supra), it has been observed thus: It is contended that transaction questioned by respondent No.3 in order dated 18.11.2017 does not fall in category of benami transaction. After hearing learned counsel for petitioner and after perusing material available on record and order dated 18.11.2017 passed by Initiating Officer under Section 24(4) of PBPT Act, it cannot be said that respondent No.3 has passed order dated (141 of 160) [CW-2915/2019] 18.11.2017 without there being any material on record. This Court at this stage cannot record finding to effect that Shri Aditya Lodha cannot be termed as benamidar or property in question is not benami property. It is for adjudicating authority to adjudicate upon matter, referred to it by Initiating Officer, after providing opportunity of hearing to Shri Aditya Lodha as per provisions of Section 26 of PBPT Act. 72. above judgement was challenged in D.B. Spl. Appl. Writ No. 1315/2018, decided on 22/10/2018: Great Pacific General Trading Company (Limited Liability Partnership) Vs. Union of India, through Secretary, Ministry of Finance, Department of Revenue holding thus: We are constraint to note that averments made in para 5 of Special Appeal are factual. As per said reply to para 5, Shri Aditya Lodha and his son Shri Manan Lodha retired on 01.06.2015 and only Shri Tarachand Parakh and his son Shri Aditya Parakh remained partners in LLP till 10.07.2017. During this period, transactions were carried out by Shri Aditya Lodha alone and Shri Tara Chand Parakh and his son Shri Aditya Parakh were not even aware of said transactions, which has given rise to bonafide suspicion that property is benami property. Hence, we agree with learned Single Judge that in case, we go into same at this stage, it would effect finding with respect to property as to whether same was benami or not. Accordingly, no ground is made out to interfere in order impugned. 73. In case , Dheeru Gond Vs. Union of India(supra), High Court of Madhya Pradesh held thus: It is apparent that learned Single Judge of this Court in WP No.10280/2017 filed by one Kailash Assudani challenging show cause notice of similar nature has dismissed petition holding that provision of Section 26 of Act, 1988 is complete code in itself providing ample opportunities to assessee concerned, and apart from that there is remedy of appeal available to petitioner. order passed by learned Single Judge of this Court in WP No.10280/2017 has been confirmed by Division Bench of this Court in WA No.704/2017 with ad following observations:- (142 of 160) [CW-2915/2019] We do not find any merit in present M appeal. It is Adjudicating Authority who is to decide question of Benami nature of property. proceedings under Section 24 of Act contemplates issuance of show cause notice as to why property specified in notice should not be treated as Benami property. However, substantive order of treating property as Benami is required to be passed by Adjudicating Authority under Section 26 C of Act only. Therefore, appellant is at liberty to take all such plea of law and facts as may be available to appellant before Adjudicating Authority. Adjudicating Authority shall decide Benami nature of property in accordance with law. 74. In case of WA-704-2017, Kailash Assudani vs Commissioner Of Income Tax: decided on 16 August, 2017, it has been observed thus: We do not find any merit in present appeal. It is Adjudicating Authority who is to decide question of Benami nature of property. proceedings under Section 24 of Act contemplates issuance of show cause notice as to why property specified in notice should not be treated as Benami property. However, substantive order of treating property as Benami is required to be passed by Adjudicating Authority under Section 26 of Act only. Therefore, appellant is at liberty to take all such plea of law and facts as may be available to appellant before Adjudicating Authority. Adjudicating Authority shall decide Benami nature of property in accordance with law. 75. In case of R. Rajagopal Reddy (Dead) by L.Rs. and Ors. (supra), it has been held thus: 11. Before we deal with these six considerations which weighed with Division Bench for taking view that Section 4 will apply retrospectively in sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they (143 of 160) [CW-2915/2019] were pending at different stages in hierarchy of proceedings even upto this Court, when Section 4 came into operation, it would be apposite to recapitulate salient feature of Act. As seen earlier, preamble of Act itself states that it is act to prohibit benami transactions and right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface then existing rights of real owners of properties held by others benami. Such act was not given any retrospective effect by legislature. Even when we come to Section 4, it is easy to visualise that Sub- section (1). of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against person in whose name property is held or against any other shall lie by or on behalf of person claiming to be real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover possession of property held benami by defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such right after coming into operation of Section 4(1) that is 19th May, 1988, shall not lie. legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on date when Section 4 came into force shall not be proceeded with and shall stand abated. On contrary, clear legislative intention is seen from words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to portals of any Court for seeking such relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, word 'lie' has been defined in connection with suits and proceedings. At page 848 of Dictionary while dealing with topic No. 9 under definition of term 'lie' it is stated as under :- For action, claim appeal ect. to subsist; be maintainable or admissible. word 'lie' in connection with suit, claim or action is not defined by Act. If we go by aforesaid dictionary meaning it would mean that such suit, claim or action to get any property declared (144 of 160) [CW-2915/2019] benami will not be admitted on behalf of such plaintiff or applicant against concerned defendant in whose name property is held on and from date on which this prohibition against entertaining of such suits comes into force. With respect, view taken by that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to date when Section came into force and which has effect of destroying then existing right of plaintiff in connection with suit property cannot be sustained in face of clear language of Section 4(1). It has to be visualised that legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of Section would amount to taking view which would run counter to legislative scheme and intent projected by various provisions of Act to which we have referred earlier. It is, however, true as held by Division Bench that on express language of Section 4(1) any right inhering in real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to coming into operation of Section 4(1), and hence-after Section 4(1) applied no suit can lie in respect to such past benami transaction. To that extent Section may be retroactive. To highlight this aspect we may take illustration. If benami transaction has taken place in 1980 and suit is filed in June 1988 by plaintiff claiming that he is real owner of property and defendant is merely benamidar and consideration has flown from him then such suit would not lie on account of provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of prohibitory provision of Section 4(1); but that is only effect of retroactivity of Section 4(1) and nothing more than that. From conclusion that Section 4(1) shall apply even to past benami transactions to aforesaid extent, next step taken by Division Bench that therefore, then existing rights got destroyed and (145 of 160) [CW-2915/2019] even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 12. So far as Section 4(2) is concerned, all that is provided is that if suit is filed by plaintiff who claims in his favour and holds property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of person claiming to be real owner of such property held benami. disallowing of such defence which earlier was available, itself, suggests that new liability or restriction is imposed by Section 4(2) on pre- existing right of defendant. Such provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply retrospectively. So far as such suit which is covered by sweep of Section 4(2) is concerned, prohibition of Section 4(1) cannot apply to it as it is not claim or action filed by plaintiff to enforce right in respect of any property held benami. On contrary, it is suit, claim or action flowing from sale deed or title deed in name of plaintiff. Even though such suit have been filed prior to 19.5.1988, if before stage of filing of defence by real owner is reached, Section 4(2) becomes operative from 19th May, 1988, then such defence, as laid down by Section 4(2) will not be allowed to such defendant. However, that would not mean that Section 4(1) and 4(2) only on that score can be treated to be impliedly retrospective so as to cover all pending litigations in connection with enforcement of such rights of real owners who are parties to benami transactions entered into prior to coming into operation of Act and specially Section 4 thereof. It is also pertinent to note that Section 4(2) enjoins that no such defence 'shall be allowed' in any claim, suit or action by or on behalf of person claiming to be real owner of such property. That is to say no such defence shall be allowed for first time after coming into operation of Section 4(2). If such defence is already allowed in pending suit prior to coming into operation of Section 4(2), enabling issue to be raised on such defence, then Court is bound to decide issue arising from such already allowed defence as at relevant time (146 of 160) [CW-2915/2019] when such defence was allowed Section 4(2) was out of picture. Section 4(2) nowhere uses words "No defence based on any right in respect of any property held benami whether against person in whose name property is held or against any other person, shall be allowed to be raised or continued to be raised in any suit." With respect, it was wrongly assumed by Division Bench that such already allowed defence in pending suit would also get destroyed after coming into operation of Section 4(2). We may at this stage refer to one difficulty projected by learned advocate for respondents in his written submissions, on applicability of Section 4(2). These submissions read as under:- Section 4(1) places bar on plaintiff pleading 'benami', while Section 4(2) places bar on defendant pleading 'benami', after coming into force of Act. In this context, it would be anomalous if bar in Section 4 is not applicable if suit pleading 'benami' is already filed prior to prescribed date, and it is treated as applicable only to suit which he filed thereafter. It would have effect of classifying so-called 'real' owners into two classes - those who stand in position of plaintiffs and those who stand in position of defendants. This may be clarified by means of illustration. and B are 'real' owners who have both purchased properties in say 1970, in names of C and D respectively who are ostensible owners viz. benamidars. files suit in February 1988 i.e. before coming into force of Act against C, for declaration of his title saying that C is actually holding it as his benamidar. According to petitioner's argument, such plea would be open to even after coming into force of Act, since suit has already been laid. On other hand, if D files suit against B at same for declaration and injunction, claiming himself to be owner but B's opportunity to file written statement comes in say (147 of 160) [CW-2915/2019] November 1988 when Act has already come into force, he in his written statement cannot plead that D is benamidar and that he, B is real owner. Thus and B, both 'real' owners, would stand on different footing, depending upon whether they would stand in position of plaintiff or defendant. It is respectfully submitted that such differential treatment would not be rational or logical. 13. According to us this difficulty is inbuilt in Section 4(2) and does not provide rationale to hold that this Section applies retrospectively. legislature itself thought it fit to do so and there is no challenge to vires on ground of violation of Article 14 of Constitution. It is not open to us to re-write section also. Even otherwise, in operation of Section 4(1) and (2), no discrimination can be said to have been made amongst different real owners of property, as tried to be pointed out in written objections. In fact, those cases in which suits are filed by real owners or defences are allowed prior to corning into operation of Section 4(2), would form separate class as compared to those cases where stage for filing such suits or defences has still not reached by time Section 4(1) and (2) starts operating. Consequently, latter type of cases would form distinct category of cases. There is no question of discrimination being meted out while dealing with these two classes of cases differently. real owner who has already been allowed defence on that ground prior to coming into operation of Section 4(2) cannot be said to have been given better treatment as compared to real owner who has still to take up such defence and in meantime he is hit by prohibition of Section 4(2). Equally there cannot be any comparison between real owner who has filed such suit earlier and one who does not file such suit till Section 4(1) comes into operation. All real owners who stake their claims regarding benami transactions after Section 4(1) and (2) came into operation are given uniform treatment by these provisions, whether they come as plaintiffs or as defendants. Consequently, grievances raised in this connection cannot be sustained. (148 of 160) [CW-2915/2019] 76. In case of State Bank of Travancore and another Vs. Mathew K.C. (supra) it has been held thus: 13. In Ikbal (supra), it was observed that action of Bank Under Section 13(4) of 'SARFAESI Act' available to challenge by aggrieved Under Section 17 was efficacious remedy and institution directly Under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing: 27. No doubt alternative remedy is not absolute bar to exercise of extraordinary jurisdiction Under Article 226 but by now it is well settled that where statute provides efficacious and adequate remedy, High Court will do well in not entertaining petition Under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. *** 28.......In our view, there was no justification whatsoever for learned Single Judge to allow borrower to bypass efficacious remedy provided to him Under Section 17 and invoke extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. Single Judge was clearly in error in invoking his extraordinary jurisdiction Under Article 226 in light of peculiar facts indicated above. Division Bench also erred in affirming erroneous order of Single Judge. 77. In case of CIT, New Delhi Vs. Ram Kishan Dass (supra), Apex Court of land held thus: 24. We find no substance in submission urged on behalf of Assessees that to adopt interpretation which we have placed on provisions of Section (149 of 160) [CW-2915/2019] 142(2C) would enable assessing officer to extend period of limitation for making assessment Under Section 153B. Explanation (iii) to Section 153B(1), as it stood at material time, provided for exclusion of period commencing from date on which assessing officer had directed Assessee to get his accounts audited Under Sub-section (2A) of Section 142 and ending on day on which assesee is required to furnish report under that Sub-section. day on which Assessee is required to furnish report of audit Under Sub-section (2A) marks culmination of period of exclusion for purpose of limitation. Where assessing officer had extended time, period, commencing from date on which audit was ordered and ending with date on which Assessee is required to furnish report, would be excluded in computing period of limitation for framing assessment Under Section 153B. principle governing exclusion of time remains same. act on which exclusion culminates is date which assessing officer fixes originally, or on extension for submission of report. 25. issue as to whether amendment which has been brought about by legislature is intended to be clarificatory or to remove ambiguity in law must depend upon context. Court would have due regard to (i) general scope and purview of statute; (ii) remedy sought to be applied; (iii) former state of law; and (iv) what power that legislature contemplated (See Zile Singh v. State of Haryana (2004) 8 SCC 1). decision in Sedco Forex International Drill Inc. v. Commissioner of Income Tax [2005] 279 ITR 310 (SC); (2005) 12 SCC 717 on which learned Counsel for assesses relied involved substitution of Explanation to Section 9(1)(ii) of IT Act, 1961 with effect from 1 April 2000. two Judge Bench of this Court held that given legislative history of Section 9(1)(ii), it can only be assumed that it was deliberately introduced with effect from 1 April 2000 and was therefore intended to be prospective. This was also so construed by CBDT, and in explanatory notes to provisions of Finance Act, 1999. As we have indicated, interpretation is matter of determining path on basis of statutory context and legislative history. In taking view that (150 of 160) [CW-2915/2019] we have, we have also taken note of fact that same view was adopted by several High Courts. Among them are (i) Punjab and Haryana High Court in Jagatjit Sugar Mills Co. Ltd. v. Commissioner of Income Tax (1994) 74 Taxman 8 (Pun. & Har.); [1994] 210 ITR 468; (ii) Kerala High Court in Commissioner of Income Tax, Cochin v. Popular Automobiles (2011) 333 ITR 308; and (iii) Allahabad High Court in Ghaziabad Development Authority v. Commissioner of Income Tax, Ghaziabad (UP) (2011) 12 Taxman.com 334 (Allahabad). decision of Kerala High Court in Popular Automobiles (supra) is subject matter of Civil Appeal No. 2951 of 2012 in these proceedings. 78. In case of Canbank Financial Services Ltd. vs. Custodian and Ors. (supra), Supreme Court observed thus: 67. evil of benami transaction was sought to be curbed by reason of provisions of Urban Land (Ceiling and Regulation) Act 1976, State Ceiling Laws, Income Tax Act 1961 as amended by Taxation Laws (Amendment) Act 1975 (See Sections 281 and 281A of Income Tax Act), Section 5 of Gift Tax Act 1958, Section 34B of Wealth Tax Act and Section 5(1) of Estate Duty Act (since repealed). It is only with that view Benami Transactions (Prohibition) Act, 1988 prohibiting right to recover benami transaction was enacted. Section 5(1) provided that all properties held benami shall be subject to acquisition as different from forfeiture provided for in Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. But even Section 5 had not been made workable as no rules under Section 8 of Act for acquisition of property held benami were framed. 79. Applying principles deducible from opinions of Apex Court of land as referred to and relied upon by learned counsel for parties; it is evident that High Court could interfere in exercise of writ jurisdiction, if, conditions precedent to exercise of jurisdiction under statutory (151 of 160) [CW-2915/2019] provisions did not exist even at stage of notice issued. Thus, High Courts have power in appropriate cases to prohibit executive authority from acting without jurisdiction. Moreover, if executive authority exercised power without jurisdiction that would subject individual to lengthy proceedings and unnecessary harassment. Hence, to prevent such lengthy proceedings and unnecessary harassment, recourse to jurisdiction under Article 226 and/or227 of Constitution is not prohibited. Further, legislative drafting is more than ordinary prose which differs in provenance, features and its import as to meaning attached thereto and presumptions as to intendment of legislation. 80. By now, it is well settled law that unless contrary intention is reflected, legislation is presumed and intended to be prospective. For in normal course of human behavior, one is entitled to arrange his affairs keeping in view laws for time being in force and such arrangement of affairs should not be dislodged by retrospective application of law. principle of law known as lex prospicit non prospicit (law looks forward not backward), is well known and accepted principle. retrospective legislation is contrary to general principle for legislation by which conduct of mankind is to be regulated when introduced for first time to deal with future acts ought not to change character of past transactions carried out in faith of then existing law (vide Phillips Vs. Eyre (1870)LR 6 QB 1). Thus, principle against retrospectivity is principle of fairplay and unless there is clear and unambiguous intendment for retrospective effect to legislation which affects accrued (152 of 160) [CW-2915/2019] rights or imposes obligations or castes new duties or attaches new disability is to be treated as prospective. 81. It is trite law that explanatory or declaratory Act is intended to supply obvious omission or is enacted to clear doubts as to meaning of previous Act. While retrospective operation is generally intended as to declaratory or curative provisions, which is supplied with language "shall be deemed always to have meant". Therefore, in absence of clarity amendment being declaratory or curative in face of unambiguous or confusion in pre-amended provisions; same is not required to be treated as curative or declaratory amendment. Viewed in light of settled legal proposition, as aforesaid, Benami Amendment Act, 2016, neither appears to be clarificatory nor curative. Moreover, by way of amendment penal consequences have been introduced providing for confiscation of benami property and enhanced punishment. 82. In case of Prakash and Ors. (supra), Apex Court of land while dealing with very Benami Amendment Act, 2016, held thus: 17. text of amendment itself clearly provides that right conferred on 'daughter of coparcener' is 'on and from commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after amendment for its applicability. In view of plain language of statute, there is no scope for different interpretation than one suggested by text of amendment. amendment of substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27. In present case, there is neither any express provision for giving retrospective effect to amended provision nor necessary (153 of 160) [CW-2915/2019] intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. intent and effect of Amendment will be considered little later. On this finding, view of High Court cannot be sustained. 18. Contention of Respondents that Amendment should be read as retrospective being piece of social legislation cannot be accepted. Even social legislation cannot be given retrospective effect unless so provided for or so intended by legislature. In present case, legislature has expressly made Amendment applicable on and from its commencement and only if death of coparcener in question is after Amendment. Thus, no other interpretation is possible in view of express language of statute. proviso keeping dispositions or alienations or partitions prior to 20th December, 2004 unaffected can also not lead to inference that daughter could be coparcener prior to commencement of Act. proviso only means that transactions not covered thereby will not affect extent of coparcenary property which may be available when main provision is applicable. Similarly, Explanation has to be read harmoniously with substantive provision of Section 6(5) by being limited to transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under Sub- section 5 or under Explanation. 83. By now, it is well settled law that substantive provision unless specifically made retrospective or otherwise intended by Parliament should always be held to be prospective. power to confiscate and consequent forfeiture of rights or interests are drastic being penal in nature, and therefore, such statutes are to be read very strictly. However, there can be no exercise of powers under such statutes by way of extension or implication (vide O.Konavalov (supra). (154 of 160) [CW-2915/2019] 84. In case of D.L.F. Qutab Enclave Complex Educational Charitable Trust (supra), Apex Court of land in no uncertain terms observed that extraordinary legislation must be strictly construed and penal statute must receive strict construction. Supreme Court further observed that mischief of rule, if applied, in view of amendment made would be in infraction to provisions of Article 20 of Constitution of India, cannot be given retrospective effect. Similar is position operating in instant batch of cases at hand. rights accrued in favour of any person owing to transaction in nature of contract protected under statute, in that event transgration/violation of those rights could only be by legislation with retrospective effect. 85. In view of settled legal proposition that no authority, much less, quasi judicial authority, can confer jurisdiction on itself by deciding jurisdictional fact wrongly; is question that is always open for scrutiny by High Court in application under Article 226/227 of Constitution of India. very question of correctness and legality of issuance of notice can be examined in exercise of writ jurisdiction. 86. In case of Mangathai Ammal (died) through L.Rs. & ors. (supra), Apex Court of land while dealing with issue of retrospective effect of Benami Amendment Act, 2016, in unambiguous terms held that Benami Transaction Act would not be applicable retrospectively. At this juncture, it would be relevant to take note of text of para 12 of said judgment which reads thus: (155 of 160) [CW-2915/2019] 12. It is required to be noted that benami transaction came to be amended in year 2016. As per Section 3 of Benami Transaction (Prohibition) Act 1988, there was presumption that transaction made in name of wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3(2) of Benami Transaction Act, 1988 statutory presumption, which was rebuttable, has been omitted. It is case on behalf of Respondents that therefore in view of omission of Section 3(2) of Benami Transaction Act, plea of statutory transaction that purchase made in name of wife or children is for their benefit would not be available in present case. Aforesaid cannot be accepted. As held by this Court in case of Binapani Paul (Supra) Benami Transaction (Prohibition) Act would not be applicable retrospectively. Even otherwise and as observed hereinabove, Plaintiff has miserably failed to discharge his onus to prove that Sale Deeds executed in favour of Defendant No. 1 were benami transactions and same properties were purchased in name of Defendant No. 1 by Narayanasamy Mudaliar from amount received by him from sale of other ancestral properties. 87. Article 20 of Constitution of India is fundamental right guaranteed under Part-III of Constitution and penal consequences emanating from Benami Amendment Act, 2016, in infraction to mandate of fundamental rights guaranteed under Article 20 of Constitution; cannot be given retrospective effect in absence of clear stipulation by Parliament on retrospectivity. 88. In case of Joseph Isharat (supra), relying upon opinion of Apex Court of land in case of R. Rajagopal Reddy (Dead) by L.Rs. and Ors. (supra) while examining provisions of amendment introduced by Legislature through (156 of 160) [CW-2915/2019] Benami Amendment Act, 2016, made effective from 1st November, 2016, Bombay High Court observed thus: 4. Under Benami Act, as it stood on date of suit as well as on date of filing of written statement and passing of decree by courts below, provided for definition of "benami transaction" under clause (a) of Section 2. Under that provision, any transaction in which property is transferred to one person for consideration paid or provided by another came within definition of "benami transaction". Section 3 of Benami Act, in sub-section (1), provided that no person shall enter into any benami transaction. Sub-section (2) contained two exceptions to prohibition contained in sub-section (1). first exception, contained in clause (a) of sub-section (2), was in respect of purchase of property by any person in name of his wife or unmarried daughter. In case of such purchase, it was to be presumed, unless contrary was proved, that property was purchased for benefit of wife or unmarried daughter, as case may be. Simultaneously, Section 4 of Benami Act contained prohibition in respect of right to recover property held benami. Sub-section (1) provided that no suit, claim or action to enforce any right in respect of any property held benami against person in whose name property is held, or against any other person, shall lie by or on behalf of person claiming to be real owner of such property. Sub-section (2) made provisions likewise in respect of defence based on plea of benami transaction. Sub-section (2) provided that no defence based on any right in respect of any property held benami, whether against person in whose name property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of person claiming to be real owner of such property. There was twofold exception to this restriction. First was in respect of person in whose name property is held being coparcener in Hindu undivided family and property being held for benefit of coparceners of family. second exception was in respect of person, in whose name property was held, being trustee or other person standing in fiduciary capacity and property being held for benefit of another person for whom he was such (157 of 160) [CW-2915/2019] trustee or towards whom he stood in such capacity. present suit was filed when these provisions were in operation. These provisions continued to apply even when written statement was filed by Defendant and suit was heard and decreed by both courts below. legal provisions continued to apply even when second appeal was filed before this court. It is only now during pendency of second appeal, when it has come up for final hearing, that there is change in law. Benami Act has been amended by Parliament in 2016 with passing of Benami Transactions (Prohibition) Amendment Act, 2016. This amendment has come into effect from 01 November 2016. In Amended Act definition of "benami transaction" has undergone change. Under Amended Act "benami transaction" means (under Section 2(9) of Act) transaction or arrangement where property is transferred to, or is held by, person, and consideration for such property has been provided, or paid by, another person; and property is held for immediate or future benefit, direct or indirect, of person who has provided consideration. There are four exceptions to this rule. first is in respect of karta or member of Hindu undivided family holding property for benefit of family. second exception is in respect of person standing in fiduciary capacity holding property for benefit of another person towards whom he stands in such capacity. third exception is in case of individual who purchases property in name of his spouse or child, consideration being provided or paid out of known sources of individual. fourth exception is in case of purchase of property in name of brother or sister or lineal ascendant or descendant where names of such brother or sister or lineal ascendant or descendant, as case may be, and individual appear as joint owners in any document. Sub-section (1) of Section 3 contains very same prohibition as under unamended Act, in that it prohibits all benami transactions. Section 4 likewise prohibits suits, claims or actions or defences based on plea of benami as in case of unamended Act. submission is that under this scheme of law, step-daughter not having been defined under Benami Act, but having been defined under Income Tax Act, 1961, by virtue of sub-section (31) of Section 2 of amended (158 of 160) [CW-2915/2019] Benami Act, meaning of expression will be one assigned to it under Income Tax Act. definition of daughter under Income Tax Act admits of step-child within it. It is submitted that under amended definition of "benami transaction", thus, there is clear exception in respect of purchase made in name of step-daughter by individual provided, of course, consideration has been provided or paid out of known sources of individual. 7. What is crucial here is, in first place, whether change effected by legislature in Benami Act is matter of procedure or is it matter of substantial rights between parties. If it is merely procedural law, then, of course, procedure applicable as on date of hearing may be relevant. If, on other hand, it is matter of substantive rights, then prima facie it will only have prospective application unless amended law speaks in language "which expressly or by clear intention, takes in even pending matters.". Short of such intendment, law shall be applied prospectively and not retrospectively. 8. As held by Supreme Court in case of R. Rajagopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630, Section 4 of Benami Act, or for that matter, Benami Act as 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 Act. Merely because it uses word "it is declared", Act is not piece of declaratory or curative legislation. If one has regard to substance of law rather than to its form, it is quite clear, as noted by Supreme Court in R. Rajagopal Reddy, that Benami Act affects substantive rights and cannot be regarded as having retrospective operation. Supreme Court in R. Rajagopal Reddy also held that since law nullifies defences available to real owners in recovering properties held benami, law must apply irrespective of time of benami transaction and that expression "shall lie" in Section 4(1) or "shall be allowed" in Section 4(2) are prospective and apply to present (future stages) as well as future suits, claims and actions only. These observations clearly hold field even as regards present amendment to Benami Act. (159 of 160) [CW-2915/2019] amendments introduced by Legislature affect substantive rights of parties and must be applied prospectively. 89. It is also fact that SLP instituted against opinion (supra), has also been declined by Supreme Court on 28 th April, 2017 in Special Leave to Appeal (C) No. 12328/2017. 90. In case of Mohar Singh (supra), Apex Court of land dealt with consequences of repeal of Act. question in case of Zile Singh (supra), was related to disqualification from being member of Municipal Council (if children were more than two). Thus, there was no violation of any fundamental right or penal consequence contemplated. Hence, principles cannot be applied to controversy raised in instant batch of writ applications. Similarly, in case of Yogendra Kumar Jaiswal (supra), observations made by Apex Court of land while dealing with issue of confiscation or attachment of money/property that was acquired illegally and that too at interim stage of prosecution. 91. In case of Titaghur Paper Mills Co. Ltd. and Ors. (supra), matter that fell for consideration of Supreme Court, was with regard to ultra vires/jurisdiction of Sales Tax Officer and no question of law was involved therein. 92. In case of Gujarat Ambuja Cement Ltd. and Ors. (supra), while dealing with scope and ambit of writ application under Article 226 of Constitution of India, Supreme Court observed that what is to be ensured before entertaining such application is that strong case is made out and there exists no ground to interfere in extra-ordinary jurisdiction. It was further (160 of 160) [CW-2915/2019] observed that where under statute there is allegation of infringement of fundamental right or when on undisputed facts Taxing Authorities are shown to have assumed jurisdiction which they do not possess, can be grounds for entertaining writ application. To same effect is opinion of Supreme Court in case of Harbanslal Sahnia and ors.(supra). 93. For reason aforesaid and in backdrop of settled legal proposition so also in view of singular factual matrix of matters herein; this Court has no hesitation to hold that Benami Amendment Act, 2016, amending Principal Benami Act, 1988, enacted w.e.f. 1st November, 2016, i.e. date determined by Central Government in its wisdom for its enforcement; cannot have retrospective effect. 94. It is made clear that this Court has neither examined nor commented upon merits of writ applications but has considered only larger question of retrospective applicability of Benami Amendment Act, 2016 amending original Benami Act of 1988. Thus, authority concerned would examine each case on its own merits keeping in view fact that amended provisions introduced and amendments enacted and made enforceable w.e.f. 1st November, 2016; would be prospective and not retrospective. 95. batch of writ applications stands disposed off, as indicated above. 96. copy of this order be placed in each of file. (VEERENDR SINGH SIRADHANA) J. Bmg Niharika Jain / Ashok Jain / Someshwari Jain / Sheela Devi Jain / Motiya Dodiyar v. Union Of India, New Delhi / Deputy Commissioner (Benami Prohibition), Jaipur / Adjudicating Authority, New Delhi