Gujarat High Court
Gujarat Enviro Protection And ... vs Union Of India & 3 on 9 March, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/10573/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10573 of 2015
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GUJARAT ENVIRO PROTECTION AND INFRASTRUCTURE LTD &
1....Petitioner(s)
Versus
UNION OF INDIA & 3....Respondent(s)
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Appearance:
MR KAMAL TRIVEDI, SR. ADVOCATE with MR RAKESH GUPTA,
ADVOCATE with MR. ABHISHEK M.MEHTA, ADVOCATE for M/S
TRIVEDI & GUPTA, ADVOCATE for the Petitioner(s)No.12
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1
MS TRUSHA K PATEL, ADVOCATE for the Respondent(s) No.12
NOTICE SERVED BY DS for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 09/03/2016
ORAL ORDER
1. Heard Mr.Kamal B. Trivedi, learned senior advocate with Mr. Rakesh Gupta, learned advocate with Mr. Abhishek M. Mehta, learned advocate for the petitioners and Ms. Trusha Patel, learned Central Government counsel for respondents no.1, 2 and 3.
2. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs "13. (A) Your Lordships may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus or a writ of certiorari and/or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the notice to show cause dated 24.04.2015 provisional attachment order Page 1 of 7 HC-NIC Page 1 of 7 Created On Mon Mar 14 01:12:29 IST 2016 C/SCA/10573/2015 ORDER dated 27.03.2015 as well as the impugned complaint dated 21.04.2015 as well as the order dated 23.06.2015 passed by the Respondent no. 3 adjudicating authority;
(B) Your Lordships may be pleased to issue a writ of mandamus and/or a writ in the nature of mandamus or a writ of certiorari and/or a writ in the nature of certiorari or any other appropriate writ, order or direction, declaring that the conduct/procedure adopted by the respondent No.3 adjudicating authority in (a) orally refusing to decide the preliminary objections/contentions regarding lack of jurisdiction of the respondent No.3 adjudicating authority as raised by the petitioners and directing the petitioners to proceed on merits without deciding, the preliminary objections/contentions regarding jurisdiction of the respondent No.3 adjudicating authority and (b) refusing to direct the respondent No.2 to place on record the entire material collected during the course of investigation (c), refusing to grant cross examination of the officers of the ED, transporters and the competent officers of the recipients of the material supplied by the petitioners who were examined by the ED during the course of investigation, as being grossly violative of principles of natural justice, causing prejudice to the petitioners and being a procedure which is contrary to law and hit by vice of arbitrariness and without application of mind and a procedure which is vitiated in law and the same deserves to be quashed and set aside.
(C) Pending admission, hearing and final disposal of present petition, Your Lordships may be pleased to direct, by way of interim relief, staying the further proceedings of complaint 0C No.453/2015 including show cause notice dated 24.4.2015, pending before the respondent No.3 adjudicating authority;
Page 2 of 7HC-NIC Page 2 of 7 Created On Mon Mar 14 01:12:29 IST 2016 C/SCA/10573/2015 ORDER (D) Pending admission, hearing and final disposal of present petition, Your Lordships may be pleased to direct, by way of interim relief that the Respondent no. 3 may not proceed with the further hearing of the complaint OC no. 453/2015 till (i) the respondent no. 3 adjudicating authority is properly constituted in accordance with the provisions of the PML Act, (ii) the entire material collected during the course of investigation is provided to the petitioners
(iii) the cross examination of the concerned officers/parties as prayed for by the Petitioners is granted;
(E) Your Lordships may be pleased to grant ad interim relief in terms of para 13(C) and 13(D) above;
(F) Any other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."
3. As far as contentions raised in the petition are concerned, the learned senior counsel appearing for the petitioners asserts that main and primary contention was that the authority was not properly constituted. It deserves to be noted that this Court had passed the following order on 01.07.2015 "Heard learned senior counsel Mr.K.B. Trivedi.
2. The Adjudicating Authority under the Prevention of Money Laundering Act, 2002 is seized of the matter of the petitioner, in the process of adjudication under Section 8 of the Act to confirm the order of provisional attachment passed under Section 5 by the authority below. In the said proceedings, petitioner wanted right to Page 3 of 7 HC-NIC Page 3 of 7 Created On Mon Mar 14 01:12:29 IST 2016 C/SCA/10573/2015 ORDER crossexamination and further wanted copies of certain documents. The request of cross examination is refused by the Adjudicating Authority on the ground that the stage under Section 8(6) has not reached and therefore, question of crossexamination of the witnesses does not arise. It has also refused the request for supply of documents for the reasons stated in the ordercumnote on proceedings dated 23rd June, 2015. It was submitted that adjudication under Section 8 is a quasi judicial proceedings. The matter is stated to be posted next on 03rd July, 2015.
3. While the aforesaid facts emerged from the record, considering the submission that the Adjudicating Authority is not duly constituted under subsection (2) of Section 6 of the Act and it has been functioning with only one Executive Member, therefore suffering from infirmity of coram non judice, further considering the fact that similar contention about constitution of Adjudicating Authority was raised in Special Civil Application No.13949 of 2014 and entertained for notice, let there be Notice in this matter, returnable on 09th July, 2015.
4. Till the next date the Adjudicating Authority is directed not to pass any orders and shall adjourn the proceedings.
5. Direct service is permitted."
Further, on 17.12.2015, this Court had passed the following order "At the joint request of learned counsel for the respective parties, S.O to 27th January, 2016. Adinterim relief granted earlier, to continue till the next date of hearing.
Page 4 of 7HC-NIC Page 4 of 7 Created On Mon Mar 14 01:12:29 IST 2016 C/SCA/10573/2015 ORDER At the request of Ms.Trusha K. Patel, learned counsel for respondent Nos.2 and 3, it needs to be clarified that this Court vide order dated 01.07.2015 granted interim relief, which is as under: "Till the next date, the Adjudicating Authority is directed not to pass any orders and shall adjourn the proceedings."
The aforesaid order is continued till date and hence, it is clarified that the period during which such adinterim relief shall remain in operation, such period shall be excluded while reckoning 180 days."
4. In response to the notice issued by this Court, the respondent authority has also dealt with the merits of the matter. However, by an additional affidavit dated 25.01.2016, the respondent no.2 through the Assistant Director, has made following statement in paras 2 and 3 of the said affidavit "2. The respondents have already filed an affidavit in reply in the above referred matter wherein the appointment of judicial member Shri G.C. Mishra in the Adjudicating Authority, PMLA was pointed out. However, with a view to bring the subsequent development on record, the deponent files present affidavit.
3. It is respectfully submitted that the Government of India vide order dated 07.01.2016 appointed Shri Tushar V Shah, Advocate as Member from the field of law in the Adjudicating Authority. In addition, the Government of India has also appointed Shri Devendra Singhai, Retd. IAS as Member from the field of administration in the Adjudicating Authority. Annexed here to and Page 5 of 7 HC-NIC Page 5 of 7 Created On Mon Mar 14 01:12:29 IST 2016 C/SCA/10573/2015 ORDER marked Annexure: A1 (colly) are copies of the respective orders dated 07.01.2016 issued from F.No. A12026/1/2013SO (ES Cell) and F.No.A12026/2/2015SO (ES Cell) by the Department of Revenue, Ministry of Finance."
5. Mr.Kamal B. Trivedi, learned senior advocate appearing for the petitioners submitted that in view of the said statement, the proceedings which are pending before the adjudicating authority be directed to be in accordance with law. However, Mr.Trivedi, learned senior counsel, has drawn the attention of this court to the prayers which are prayed in para 13(B) of the petition.
6. In view of the aforesaid statement made in the affidavitinreply filed by the concerned respondent, the present petition is disposed of and the learned authority, respondent no.3 herein, shall give opportunity of being heard to the petitioners and pass appropriate orders. It goes without saying that the learned authority, respondent no.3 herein, shall follow Adjudicating Authority (Procedure) Regulations, 2013 and consider the prayers which are prayed for in para 13 (B). The authority shall also give copy of the reply that is filed by the complainant. It is however clarified that this Court has not expressed any opinion on the other issues which are pending before the adjudicating authority and the authority shall decide the same in accordance with law. As far as order dated 17.12.2015 is Page 6 of 7 HC-NIC Page 6 of 7 Created On Mon Mar 14 01:12:29 IST 2016 C/SCA/10573/2015 ORDER concerned, the time taken before this Court shall not be taken into reckoning 180 days, as pointed out by Ms.Patel, learned Central Government counsel, that the provisional attachment order is dated 27.03.2015. The petition stands disposed of accordingly. Notice discharged. Adinterim relief stands vacated.
(R.M.CHHAYA, J.) bjoy Page 7 of 7 HC-NIC Page 7 of 7 Created On Mon Mar 14 01:12:29 IST 2016