ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan) Heard Mr. Mohan Sai, learned counsel appearing on behalf of Mr. Ch.Venkat Raman, learned counsel for the petitioner; Mr. B.Mukherjee, learned counsel representing Mr. Namavarapu Rajeshwar Rao, learned Assistant Solicitor General of India for respondent No.1; and Mr. B.Narasimha Sarma, learned Standing Counsel for the Income Tax Department appearing for respondents No.2 to 6.
2. Petitioner is aggrieved by orders dated 30.03.2022, 31.03.2022, 11.04.2022 and 12.04.2022 passed by respondent No.5 under Section 24(4)(b)(i) of the Prohibition of Benami Property Transactions Act, 1988, as amended (briefly 'Benami Property Act' hereinafter).
3. By the aforesaid orders, respondent No.5 exercising powers under Section 18(2) of the Benami Property Act has provisionally attached the properties mentioned in the
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aforesaid orders till such time orders are passed by the Adjudicating Authority under Section 26(3) of the Benami Property Act.
4. Thereafter, reference was made to the Adjudicating Authority under Section 24(5) of the Benami Property Act, following which the Adjudicating Authority issued notice to the petitioner.
5. Learned counsel for the petitioner submits that the relevant documents were seized by Special Investigation Team led by the Assistant Commissioner of Police following encounter on 08.08.2016 in which the petitioner's brother viz., Nayeemuddin, who was the petitioner in W.P.No.27803 of 2022 and 27813 of 2022, was killed. The seized documents include several sale deeds as well as link documents. In the absence of the above documents, petitioner was handicapped in making effective defence before the provisional attachment orders were passed. She would continue to be handicapped before the Adjudicating Authority unless and until
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the relevant documents are made available to her for effective defence.
6. At this stage, we may refer to relevant provisions of the Benami Property Act. Attachment, adjudication and confiscation are dealt with Chapter-IV of the Benami Property Act. Under Sub- Section (3) of Section 24 where the Initiating Officer is of the opinion that the person in possession of the property held 'benami' may alienate the property, he may with the approval of the approving authority provisionally attach the property for a period not exceeding 90 days. Where the Initiating Officer passes an order continuing the provisional attachment by exercising power under Sub-Section (4) of Section 24, he shall within 15 days from the date of attachment draw up a statement of the case and refer it to the Adjudicating Authority.
7. Adjudication of benami property is dealt with in Section 26. We are concerned with Sub-Section (3) of Section 26, which reads as under:
"(3) The Adjudicating Authority shall, after-
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(a) considering the reply, if any, to the 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 an opportunity of being heard to the person specified as a benamidar therein, the Initiating Officer, and any other person who claims to be the owner of the property, and, thereafter, pass an order-
(i) holding the property not to be a benami property and revoking the attachment order; or
(ii) holding the property to be a benami property and confirming the attachment order, in all other cases."
8. From a perusal of the above, it is seen that the Adjudicating Authority is empowered to make or cause to be made inquiries and to call for reports or evidence as it deems fit. It has also the authority to take into account all relevant materials besides reply of the notice and thereafter, to take a decision one way or the other holding the property not to be a benami property and revoking the attachment order or holding the property to be a benami property and confirming the attachment order.
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9. Considering the fact that petitioner before us is the sister of late Nayeemuddin, who was the petitioner in W.P.No.27803 of 2022 and 27813 of 2022 being killed in encounter, and facing stringent provisions of the Benami Property Act, it would meet the ends of justice if the adjudicating authority, on receipt of application of the petitioner, calls for the relevant documents/evidence from the authorities including the Special Investigating team and thereafter hand over copies of the same to the petitioner so as to enable her to make effective defence.
10. Accordingly and in the light of the above, the following directions are issued:
(i) Petitioner shall submit application before the Adjudicating Authority within two (02) weeks from today mentioning therein the documents required for her defence and in whose custody the documents are being kept.
(ii) On receipt of such application, the Adjudicating Authority shall requisition the relevant documents/evidence from the concerned authorities.
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(iii) On receipt of the documents/evidence by the Adjudicating Authority, petitioner or her authorised representative shall be permitted to go through the same and on their request, photocopies of such documents may be made available to the petitioner or her authorized representative.
(iv) Thereafter, petitioner shall file her reply to the notice issued by the Adjudicating Authority
(v) Adjudicating Authority shall consider the petitioner's reply and all other materials on record and thereafter pass an order in terms of Sub- Section (3) of Section 26 of the Benami Property Act.
11. This disposes of the Writ Petition. However, there shall be no order as to costs. As a sequel, miscellaneous petitions, pending if any, stand closed.
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UJJAL BHUYAN, CJ
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SUREPALLI NANDA, J
Date: 27.07.2022
LUR
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