Jharkhand High Court
Shri Dehati Stapana Nyas Tlhpdf vs The Directorate Of Enforcement And Anr on 10 February, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 2896 of 2014
Shri Dehati Stapana Nyas (TLHPDF) represented
through its trustee cum authorized person
Shri Lal Hemendra Pratap Dehati ,
Dist. Garhwa, Jharkhand ....Petitioner
vs.
1. The Directorate of Enforcement.
2. The Joint Director, Directorate of
Enforcement, Prevention of Money
Laundering Act, Govt. of India, Lucknow .....Respondents
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : Mr. Mahesh Tiwari, Adv.
For the Respondents : Mr. A. K. Das, Adv.
04/10.2.2016 Heard learned counsel for the parties.
Petitioner is a trust registered at District Registrar Office, Ranchi as per Annexure1,deed on 13th March, 2008. It is aggrieved by the order of the Adjudicating Authority dated 12th May, 2014 passed in Original Complaint Case no. 238/2013 under the provisions of Prevention of Money Laundering Act (PMLA in short). Learned Adjudicating Authority has confirmed the Provisional Attachment Order no. 03/2013 dated 9th December, 2013.
Challenge to the impugned order has been made on the grounds of violation of principles of natural justice as no notice has been served upon the petitioner or any of the trustee named in the trust instrument as required under the provisions of Section 8 of P.M.L.A Act, 2002.
Counsel for the petitioner submits that the impugned order being violative of principles of natural justice and passed in relation to properties of the trust requires to be interfered in exercise of powers under Article 226 of the Constitution of India. It is submitted that the order of adjudication has been passed against a person in relation to properties of the petitioner, who was not the trustee of the trust in question but only the author of the trust.
Reliance has been placed upon the provisions of Indian Trust Act, 1882 to submit that purpose and object of the trust is to be carried out by the trustee for the benefit of beneficiaries from the subject matter of trust 2. property. The action of the Adjudicating Authority in denying reasonable opportunity of hearing before passing the impugned order is in teeth of the specific provisions of Sections 6 and 8 of the P.M.L.A Act. It is submitted that provisions of Section 26 of the Act relating to appeal before the Appellate Tribunal is of no meaning for a person who has not been given any opportunity to defend himself before Adjudicating Authority. Petitioner would be denied opportunity to defend himself on merits before Appellate Tribunal as no documents relating to the petitioner could be adduced before Adjudicating Authority who has passed an order of confirmation of the provisional attachment affecting the petitioner. Therefore, the petitioner has approached this Court.
Reference has made to certain findings recorded in the impugned order itself where properties of the trust are also referred to, which in itself required due opportunity to the petitioner to defend himself.
Counsel for the respondent, Directorate of Enforcement has strongly opposed the prayer of the writ petitioner. Straightway an objection is taken to the maintainability of the writ petition in the presence of statutory appeal provided under Section 26 of the Act. Learned counsel for the respondents submits that aim and object of the Act is to reach to the person who is the beneficiary of the proceeds of the crime after due investigation by the agency. The provisional order of attachment passed by the Director was never challenged by this petitioner earlier nor in the present proceeding. The order being appellate and the provisions of Section 26 permitting any person aggrieved to prefer an appeal, this Court should refrain from entertaining the writ petition especially when questions of fact dependent upon materials collected during investigation are required to be gone into. It is submitted that after exhaustion of the remedy available under Section26, there is a provision of appeal under Section 42 to the High Court on any question of law or fact arising out of such order. Therefore, there is no occasion for the petitioner to straightway invoke the writ jurisdiction of the Court. It is submitted 3. that if the petitioner would have approached the Appellate Tribunal, all questions on merits could have been examined and the Appellate Tribunal was well within the power to pass an order in accordance with law.
I have considered the submissions of the parties in the light of the relevant material facts noticed hereinabove. At outset it is to be observed that the Prevention of Money Laundering Act, 2002 has been specifically enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in money laundering and for matters connected therewith or incidental thereto by the Parliament in view of the declaration by General Assembly of United Nations passed in seventeenth Special Session. Statement of objects and reasons under the Act indicate that an urgent need for such a comprehensive Legislation inter alia for preventing money laundering and connected activities, confiscation of proceeds of crime, setting up of agency and mechanism for coordinating measures for combating money laundering was the reason for enactment of the instant Legislation. The Legislation provides for an Investigating Body to carry out investigation for reaching to a conclusion relating to the beneficiary of any proceeds of crime. It also provides for provisional attachment of such property by the Director of Enforcement Directorate. Such provisional attachment is subject to confirmation by the Adjudicating Authority within a time frame as per Section 8 thereof. The Legislature has in the mechanism provided under the Act specifically made provision for appeal against any order of Adjudicating Authority affecting the Director or any person aggrieved.
The Legislature has consciously used the expression 'any person aggrieved' in Section 26 of the Act. It is quoted hereunder:
"Section 26 : Appeal to Appellate Tribunal (1) Save as otherwise provided in subsection (3), the Director or any person aggrieved by an order made by the Adjudicating Authority under this Act, may prefer an appeal to the Appellate Tribunal.
(2) Any [ reporting entity] aggrieved by any order of the Director made under subsection (2) of Section 13, may prefer an appeal to the Appellate Tribunal.
(3) Every appeal preferred under subsection (1) or subsection (2) shall be filed within a period of fortyfive days 4. from the date on which a copy of the order made by the Adjudicating Authority or Director is received and it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may, after giving an opportunity of being heard, entertain an appeal after the expiry of the said period of fortyfive days if it is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an appeal under subsection (1) or subsection (2), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the Adjudicating Authority or the Director concerned, as the case may be.
(6) The appeal filed before the Appellate Tribunal under subsection (1) or subsection (2) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of filing of the appeal.
Perusal of provisions of appeal show that the Legislature has consciously used the expression, any person aggrieved as it may happen that while undertaking attachment proceedings not only the parties before the Adjudicating Authority but other person whose property may have been attached would have an opportunity to prefer an appeal on being aggrieved before Appellate Tribunal. Petitioner, if so aggrieved by the order of the Adjudicating Authority was entitled to invoke the Forum of Appeal before Appellate Tribunal as per procedure prescribed therein and subject to all conditions stipulated thereunder. It is not out of context to observe here that in matters relating to fiscal statutes and such Specialized Act where a comprehensive mechanism has been laid down from the stage of investigation, provisional attachment and adjudication upto forum of appellate body, writ court should not enter into an arena of adjudication at stage where a person aggrieved has remedy available under the Act before the Appellate Forum where issues on merits as also grounds relating to violation of principle of natural justice can be raised.
In such circumstances, this Court is of the opinion that the petitioner has adequate alternative remedy if so aggrieved by the order of Adjudicating Authority to raise his grievances.
Learned counsel for the petitioner submits that the appellate 5. remedy may be delayed on account of petitioner prosecuting the instant writ petition before this Court. Therefore, the Appellate Tribunal may be directed to consider the question of delay sympathetically.
Learned counsel for the Respondents Directorate submits that provisions of under Section 26 of the Act itself provide for a person aggrieved to give sufficient reasons for any delay in preferring the appeal. It goes without saying that the Appellate Tribunal would consider such issue in accordance with law and the fact that petitioner has been prosecuting the writ petition before this Court for the instant cause of action.
Accordingly, the writ petition is dismissed on the aforesaid grounds.
(Aparesh Kumar Singh,J) jk