Section 68 of the Prohibition of Benami Property Transactions Act, 1988: Power to Make Rules

Section 68 empowers the Central Government to make rules, by notification, for carrying out the provisions of the Prohibition of Benami Property Transactions Act, 1988 (Act No. 45 of 1988). The present name of the principal Act reflects the amendments brought into force from 1 November 2016.

Meaning and scope of Section 68

Section 68 is the statutory rule-making provision of the Act. Parliament has laid down the substantive legal framework in the Act and has authorised the Central Government to prescribe procedural and administrative details through rules wherever the Act requires or permits such prescription.

The expression "by notification" means that rules are made through an official notification issued by the Central Government. Such rules must remain within the scope of the authority granted by the Act.

Text and subject matter of Section 68

Section 68(1): The Central Government may, by notification, make rules for carrying out the provisions of the Act.

Section 68(2): Without limiting that general power, rules may provide for specified matters, including:

  1. the manner of ascertaining fair market value under clause (16) of section 2;
  2. the manner of appointing the Chairperson and Member of the Adjudicating Authority under section 9(2);
  3. the salaries and allowances payable to the Chairperson and Members of the Adjudicating Authority under section 13(1);
  4. the powers and functions of authorities under section 18(2);
  5. other powers of authorities under section 19(1)(f);
  6. the form and manner of furnishing information to an authority under section 21(2);
  7. the manner of provisional attachment of property under section 24(3);
  8. the procedure relating to confiscation of benami property under the second proviso to section 27(1);
  9. the manner and conditions for receiving and managing property under section 28(1);
  10. the manner and conditions for disposal of property vested in the Central Government under section 28(3);
  11. the salaries, allowances and other service conditions of the Chairperson and other Members of the Appellate Tribunal under section 33(1);
  12. the prescribed procedure relating to removal of the Chairperson or a Member under section 35(4);
  13. the salaries, allowances and other service conditions of officers and employees of the Appellate Tribunal under section 39(3);
  14. powers of the Appellate Tribunal referred to in section 40(2)(i);
  15. the form of appeal and the fee for filing an appeal under section 46(1); and
  16. any other matter that is required or permitted to be prescribed, or for which provision is to be made by rules.

Rules made under Section 68

The Central Government exercised the power under Section 68 to make the Prohibition of Benami Property Transactions Rules, 2016. The Rules were notified on 25 October 2016 and came into force on 1 November 2016. They contain procedural provisions and prescribed forms for implementation of the Act.

Why Section 68 is important

The provision enables implementation of the Act without requiring Parliament to place every procedural detail in the principal legislation. At the same time, rules made under Section 68 are subordinate legislation: they must be consistent with the Act and cannot enlarge the statute beyond the authority delegated by Parliament.

Current statutory title: The principal legislation is the Prohibition of Benami Property Transactions Act, 1988. The Benami Transactions (Prohibition) Amendment Act, 2016 substantially amended the earlier law and changed the short title of the principal Act with effect from 1 November 2016.

Related provisions

Section 68 should be read with the provisions that expressly require matters to be prescribed by rules and with Section 69, which deals with laying rules and certain notifications before Parliament.