Karnataka High Court
Shri Noor Ahmed Khan vs The Deputy Director on 24 August, 2020
Bench: Aravind Kumar, Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.S.A. NO.46/2020
C/W
M.S.A. NO.47/2020
IN M.S.A. NO.46/2020:
BETWEEN:
SHRI. NOOR AHMED KHAN
S/O SATTAR KHAN
AGED ABOUT 63 YEARS,
OCC: RTD EXECUTIVE ENGINEER
KRIDL, R/AT EARLIER AT DHARWAD
BUT NOW AT NO.8, 2ND CROSS
CHURCH ROAD, BASVANGUDI
BENGALURU - 04.
...APPELLANT
(BY SRI. ASHOK R KALYANASHETTY, ADVOCATE)
AND:
1. THE DEPUTY DIRECTOR
DIRECTORATE OF ENFORCEMENT
3RD FLOOR, B BLOCK, BMTC BUILDING
SHANTHI NAGAR, TTMC K.H. ROAD
BENGALURU - 560 027.
2
2. THE MANAGER
CANARA BANK
NARAYANPUR DHARWAD BRANCH
GERMAN HOSPITAL ROAD
DHARWAD - 560 008.
...RESPONDENTS
(BY SRI. JAYAKAR SHETTY, CGC FOR R-1;
V/O DATED 21.07.2020 NOTICE TO R-2
IS DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 42 OF
PREVENTION OF MONEY LAUNDERING ACT 2002,
SETTING ASIDE THE ORDER DATED:26.02.2020 PASSED
BY THE APPELLATE TRIBUNAL FOR SAFEMA, FEMA,
PMLA, NDPS AND PBPT ACT, AT NEW DELHI IN FPA-PMLA-
2407/BNG/2018 DISMISSING THE SAID APPEAL AS WELL
AS THE ORDER DATED 14.09.2016 PASSED BY THE
ADJUDICATING AUTHORITY UNDER SECTION 8(3) OF THE
PREVENTION OF MONEY LAUNDERING ACT 2002 IN O C
575/2016 CONFIRMING THE ATTACHMENT OF HIS
MOVABLE PROPERTY THE FORD ECO SPORT CAR
BEARING REGN NO.KA 22 Z 4133 IN THE INTEREST OF
JUSTICE AND EQUITY.
IN M.S.A. NO.47/2020:
BETWEEN:
SMT. RESHMA
W/O NOOR AHMED KHAN
AGED ABOUT 59 YEARS
OCC: HOUSE WIFE
RESIDED EARLIER AT DHARWAD
AND NOW AT NO.8, 2ND CROSS
CHURCH ROAD, BASAVANAGUDI
BENGALURU - 04. ...APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE)
3
AND:
1. THE DEPUTY DIRECTOR
DIRECTORATE OF ENFORCEMENT
3RD FLOOR, 'B' BLOCK, BMTC BUILDING
SHANTHI NAGAR, TTMC K.H. ROAD
BENGALURU - 560 027.
2. THE MANAGER
CANARA BANK
NARAYANPUR DHARWAD BRANCH
GERMAN HOSPITAL ROAD
DHARWAD - 560 008.
...RESPONDENTS
(BY SRI. JAYAKAR SHETTY, CGC FOR R-1;
V/O DATED:22.06.2020 NOTICE TO R-2
IS DESPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 42 OF
PREVENTION OF MONEY LAUNDERING ACT 2002,
SETTING ASIDE THE ORDER DATED:26.02.2020 PASSED
BY THE APPELLATE TRIBUNAL FOR SAFEMA, FEMA,
PMLA, NDPS AND PBPT ACT, AT NEW DELHI IN FPA-PMLA-
2408/BNG/2018 DISMISSING THE SAID APPEAL AS WELL
AS THE ORDER DATED 14.09.2016 PASSED BY THE
ADJUDICATING AUTHORITY UNDER SECTION 8(3) OF THE
PREVENTION OF MONEY LAUNDERING ACT 2002 IN O C
575/2016 CONFIRMING THE ATTACHMENT OF HER
OWNERSHIP IMMOVABLE PROPETIES NAMELY (A) LAND
MEASURING 16G LOCATED AT SY. NO.11/1P3, 0-06G AT
SY.NO.11/1P3, 0-03G AT SY.NO.11/2BP1, 0-23G AT SY.
NO.11/2BP11 OF SANTEBENNUR, DAVANAGERE
DISTRICT, AND (B) SITE MEARUSRING 381.27 SQ MTR
(03G) AT SY NO.81A/1A/1A/1A/2A/ SP NEAR MICHIGAN
COMPUND, DHARWAD, IN THE INTEREST OF JUSTICE
AND EQUITY.
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THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are preferred challenging the correctness and legality of the common order dated 26.02.2020 passed by the Appellate Tribunal For SAFEMA, FEMA, PMLA, NDPS & PBPT Act, New Delhi in FPA-PMLA-2407-2408/BNG/2018 whereunder the appeals filed by the appellants herein came to be dismissed without condoning the delay of 657 days in filing the respective appeals.
2. Appellants in MSA No.46/2020 and 47/2020 are husband and wife respectively. Appellant in MSA No.46/2000 was serving as Group A officer in the Government of Karnataka. Lokayukta police, Dharwad registered a complaint under Crime No.10/2010 on 15.11.2010 and after investigation, charge sheet 4/2014 came to be filed on 01.04.2014 for the offences 5 punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'PC Act') involving amount of Rs.1,58,39,262/-. Provisional order of attachment came to be passed in PAO NO.13/2016 on 30.03.2016 and a complaint came to be lodged before the adjudicating authority in O.C.No.575/2016 under Section 5(5) of the Prevention of Money Laundering Act, 2002 (for short 'PML Act') . The adjudicating authority confirmed the provisional order of attachment by order dated 14.09.2016 under Section 8(3) of PML Act. Notice dated 05.10.2016 under Section 8(4) of PML Act came to be issued for taking possession of properties.
3. Both the appellants filed W.P.Nos.63381- 382/2016 challenging the said notice, interalia contending that very initiation of proceedings itself is bad in law, inasmuch as, provision of PC Act came to be amended to the schedule under PML Act subsequently 6 and on the date of charge sheet being filed, there was no offence under the PML Act. During the course of pendency of the writ petition, a memo came to be filed by the respondent therein on 07.12.2017 contending that writ petitions are not maintainable and petitioners have alternate and efficacious remedy available under the PML Act. Since records of W.P.Nos.63381- 382/2016 was ordered to be obtained, same has been perused by us and we find that said memo was duly served on the learned counsel who was appearing for the petitioners. Subsequently, matter was heard on 04.01.2018 and reserved for orders. Learned Single Judge by order dated 16.05.2018 dismissed the writ petitions. In fact, the learned Single Judge seems to have been persuaded by the submissions made by the learned Advocate appearing for petitioners which was to the effect that provisional attachment order as well as confirmation order passed by the adjudicating authority 7 has already been challenged before the appellate Tribunal and same was pending. The learned Single Judge taking note of the fact that statute itself provides for filing an appeal and in view of the submission having been made that the provisional order as well as order of adjudicating authority having already been challenged in the appeal, writ petitions came to be dismissed. This order passed in the said writ petitions has become final as there is no challenge to the same.
4. There was no such appeal filed challenging the order of adjudicating authority as on date writ petitions came to be disposed of i.e., as on 16.05.2018. Subsequently, appeals came to be filed before the appellate Tribunal on 03.07.2018 along with applications for condonation of delay since there was delay of 657 days in filing the appeals. Appellate Tribunal after considering the applications for condonation of delay, rejected the contentions raised 8 therein and dismissed the applications for condonation of delay and consequently dismissed the appeals by the impugned orders dated 26.02.2020. The grounds on which Appellate Tribunal dismissed the applications were:
(i) Petitioners (Appellants) had mislead writ Court that adjudicating order and provisional order had already been challenged before Appellate Tribunal, which was factually incorrect;
(ii) Synopsis filed in W.P.Nos.63381-382/2016 though indicated that as on 13.12.2016, petitioners had preferred the appeal under Section 26 of PML Act against provisional order as well as order of the Adjudicating Authority same has not been filed; 9
(iii) the alleged cause is tainted with negligence and irresponsibility and cause shown lacks bonafides.
By relying upon the judgment of the Hon'ble Apex Court rendered in P.K.RAMACHANDRAN vs STATE OF KERALA reported in JT 1997(8) SC 189 whereunder it was held that provisions of the Limitation Act cannot be so liberally construed so as to frustrate the very purpose of the provisions of Limitation Act, Appellate Tribunal dismissed the applications and consequently dismissed the appeals as aforestated. Hence, these second appeals have been filed by the appellants contending that substantial questions of law as formulated in these appeals would arise for consideration.
5. We have heard Sri Ashok R Kalyanashetty, learned Advocate appearing for appellants and Sri Jayakar Shetty, learned Central Government Standing 10 Counsel appearing for respondent-1. We have perused the impugned order as well as provisions of law which has been pressed into service.
6. It is the contention of Sri Ashok R Kalyanashetty, learned Advocate appearing for the appellants that there was an inadvertent lapse in specifically not challenging the order dated 14.09.2016 in W.P.Nos.63381-382/2016 though entire proceedings has been challenged and as such, question of delay in filing the appeal should not be so construed as same coming in the way of appeal being considered on merits to defeat the right of the appellant to prosecute his just cause in filing an appeal as the statute itself provides right of appeal. He would also contend that even otherwise, writ petitioners in W.P.Nos.63381-382/2016, at paragraphs 10 and 11, have made specific reference to the order of the Adjudicating Authority dated 14.09.2016 and same had also been produced at 11 Annexure-G which would indicate that there was no suppression of facts by petitioners whatsoever. He would elaborate his submissions on the said issue and contends that entire proceedings initiated against petitioners had been challenged and not seeking for quashing of the order dated 14.09.2016 specifically would not arise as it was inconsequential and same would recede to background. He would also contend that petitioners have been prosecuting the right cause before the wrong forum and as such, Section 14 of the Limitation Act, 1963 would get attracted. As such, he prays for framing substantial question of law by answering the same in favour of appellants by allowing the writ petitions by setting aside the impugned order and restoring the appeals for being adjudicated by the Appellate Tribunal in accordance with law.
7. Per contra, Sri Jayakar Shetty, learned Central Government Standing Counsel appearing for 12 respondent-1 would support the impugned order and contends that by trick and stratagem, petitioner wanted to protract the proceedings before various forums by making mis-statements before judicial foras and as such, conduct of the petitioners-appellants would disentitle them from grant of any relief muchless, condonation of delay. Hence, he prays for dismissing the appeal without framing the substantial question of law as there is none.
8. Having heard the learned Advocates appearing for parties and on perusal of the records, we notice that these two second appeals are filed against order of the Appellate Tribunal dismissing the applications filed for condonation of delay and consequently the appeals also. As noticed from the facts canvassed herein above, adjudicating order came to be passed on 14.09.2016. For reasons best known, petitioners-appellants did not challenge the said order. Though Sri Ashok R 13 Kalyanashetty, learned Advocate appearing for the appellants has made a valiant attempt to buttress his arguments contending that on account of entire proceedings initiated by respondents itself having been challenged before the writ Court in W.P.Nos.63381- 382/2016, same has to be construed as though petitioners-appellants had challenged the order dated 14.09.2016. We are not inclined to accept the same for the simple reason that said order was not factually challenged in the writ petitions nor they did seek for setting aside the order of Adjudicating Authority. Having perused the prayer made in the said writ petitions, we notice that petitioners-appellants have not sought for quashing of the said order. On the other hand, petitioners had contended that respondent-1 could not have invoked the provisions of PML Act on the premise that Section 3 of PC Act was not included in paragraph 8 of the Schedule to PML Act.
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9. The aforesaid writ petitions which came to be filed by the petitioners on 13.12.2016 challenging the very proceedings initiated by the authorities came to be dismissed on 16.05.2018. Against the order of Adjudicating Authority which came to be passed on 14.09.2016. Appeal is provided under Section 26 of the PML Act. Sub-section (3) of Section 26 mandates that said appeal should be filed within a period of 45 days and proviso to sub-section (3) empowers the Appellate Tribunal to condone the delay even after expiry of 45 days if the applicant or appellant would satisfy the Appellate Tribunal with sufficient cause.
10. The expression "sufficient cause" has received the attention of this Court and the Hon'ble Apex Court in catena of judgments. The expression "sufficient cause" which also finds a place in Section 5 of the Limitation Act has been examined by the Hon'ble Apex Court and it has been consistently held that 15 sufficient cause should receive liberal interpretation rather than pedantic approach. It is no doubt true that no litigant would stand to benefit by approaching the Courts belatedly. As such, wherever issue regarding delay would arise, there may be liberal approach while examining the plea of delay, it is not the length of delay, but it is the cause for delay which would be of paramount consideration. However long the delay might be, if the cause shown is sufficient or in the proximity of truth, such delay deserves to be condoned. On the other hand, if the delay is unexplained or there is mis- statement of facts or suppression of facts irrespective of short delay, it would not receive liberal construction or olive branch would not be extended by the Courts to such unscrupulous litigants for condoning the delay. It is trite law that when technicalities are pitted against substantial justice, such technicalities will have to necessarily kneel down before substantial 16 justice. We are reminded of the judgment of the Hon'ble Apex Court in the case of COLLECTOR, LAND ACQUISITION, ANANTNAG AND ANR vs. MST. KATJI AND OTHERS reported in AIR 1987 SC 1353 whereunder their Lordships have clearly held that a liberal approach will have to be there by Courts while considering an application for condonation of delay. At the same time, if a litigant or applicant has made any attempt by trick or stratagem to protract the proceedings and keeping the kettle of litigation boiling namely, keeping the lis pending, such approach would not receive liberal construction but will have to dealt with an iron hand.
11. In the instant case, as noticed herein above, order of Adjudicating Authority came to be passed on 14.09.2016 and said order was not challenged in W.P.Nos.63381-382/2016 and only consequential possession notice which came to be issued by the 17 adjudicating authority on 05.10.2016 was challenged in the said writ petitions and petitioners therein incidentally referred to the order passed by the Adjudicating Authority dated 14.09.2016 in the said writ petitions without seeking for same being quashed. If at all, petitioners had challenged the said order, contours of the present appeals would have been changed and contention of Mr.Ashok R Kalyanashetty, learned Advocate appearing for petitioners-appellants which is to the effect that Section 14 would get attracted, would have been squarely applicable. However, order passed by the Adjudicating Authority dated 14.09.2016 having not been challenged, benefits flowing from Section 14 would not enure to the benefit of petitioners. We say so for the reason that in the aforesaid writ petitions, respondents had filed a memo to the effect that writ petitions were not maintainable and they have alternate remedy. Yet, petitioners did not 18 chose to challenge the order dated 14.09.2016 in the said writ petitions, which was pending even as on 07.12.2017 i.e., date of filing of memo. On the other hand, when the matter was taken up for consideration by learned Single Judge on 04.01.2018, submission came to be made that orders of the adjudicating authority as well as provisional order have already been challenged by appellants before Appellate Tribunal though it was not and this is a mis-statement of facts. In other words, learned Judge seems to have been mislead about appeal having been filed by petitioners challenging the order dated 14.09.2019. We say so for the simple reason that learned Single Judge who disposed of writ petition Nos.63381-382/2016 has clearly observed at paragraph 12 of the order to the following effect:
"12. In this connection, I have also perused xxx assistance of the petitioners.
However, the said Provisional Attachment Order passed by the respondents/ authorities and also the 19 confirmation order passed by the Adjudicating Authority are said to have been already challenged before the appellate Tribunal and the proceedings are still pending."
(emphasis supplied by us) This would clearly indicate, but for the submission made by petitioners therein, aforesaid observation would not have been made by the learned Single Judge and writ petitions would not have been dismissed. Probably writ petitions might have been considered.
12. Even otherwise, when the memo dated 07.12.2017 came to be filed by the learned Advocate appearing for respondents contending that writ petitions are not maintainable, least that was expected of the petitioners as a vigilant litigant, was to either seek for inclusion of the prayer for quashing of the order dated 14.09.2016 or filing of an appeal before the `Appellate Tribunal challenging the order dated 14.09.2016. Neither of these two courses which was open to the 20 petitioners came to be adopted. On the other hand, when the writ petitions came up for hearing, they submitted that appeals have been filed which was factually incorrect. As noticed herein above, the appeal should have been filed within 45 days i.e., on or before 29.10.2016 and writ petitions even if construed as one having been filed challenging the order dated 14.09.2016, it could have been construed as having been filed within the period of limitation if it had been presented on or before 29.10.2016. However, writ petitions had been filed on 13.12.2016 and there is not even a whisper in the writ petitions as to what prevented the petitioners from challenging the order of Adjudicating Authority dated 14.09.2016. In other words, at every step, petitioners have been exhibiting laxity, negligence, carelessness and what is applicable to a rustic villager or a person who is not conversant with the worldly affairs, i.e., to plead ignorance about 21 nuances of filing appeals, cannot be extended to the petitioners herein because first petitioner was a Group 'A' officer in Government of Karnataka and the second appellant is none other than his wife. In other words, they are fully conversant with the nuances of filing petitions and appeals as is evident from their acts in challenging orders passed by authorities in different forums at different stages. Yet, they chose not to challenge the order of Adjudicating Authority dated 14.09.2016 and only after writ petition Nos.63381- 382/2016 came to be dismissed on 16.05.2018, appeals in question came to be filed on 03.07.2018 by which date, there was already an inordinate delay.
13. It is for these myriad reasons, Appellate Tribunal has dismissed the appeals and we find that there is no question of law much less substantial question of law as framed in the appeal memorandum which requires to be framed in these appeals to be 22 adjudicated and answered. As such, we do not find any good ground to entertain these appeals.
Hence, we proceed to pass the following:
JUDGMENT
(i) Appeals are dismissed. Order dated 26.02.2020 passed by the Appellate Tribunal For SAFEMA, FEMA, PMLA, NDPS & PBPT Act, New Delhi in FPA-PMLA-2407-
2408/BNG/2018 is affirmed.
(ii) No order as to costs.
All pending applications stands consigned to records.
SD/-
JUDGE SD/-
JUDGE *sp