Court No. - 67
Case :- CRIMINAL MISC. WRIT PETITION No. - 8446 of 2021
Petitioner :- Xpress Mining Private Limited And 2 Others Respondent :- Directorate Of Enforcement And 2 Others Counsel for Petitioner :- Pushkar Mehrotra
Counsel for Respondent :- G.A.,Manu Vardhana
Hon'ble Rahul Chaturvedi,J.
Heard Sri Anurag Khanna, learned Senior Counsel assisted by Sri Pushkar Mehrotra, learned counsel for the applicant and Sri Manu Vardhana, learned counsel for the Enforcement Directorate.
This writ petition is being filed with the following prayer :-
(i) Issue a writ, order or direction, in the nature of certiorari quashing the impugned Provisional Attachment Order dated 27.11.2020 passed under Section 5 of the PMLA Act by the respondent no.2-Deputy Director of Enforcement being Order No.3 of 2020 files as Annexure No.-1 to this writ petition.
(ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned show cause notice dated 07.10.2021 issued/passed by Registrar/Administrative Officer Adjudicating Authority PMLA respondent no.3 Under Section 8(1) of the PMLA Act filed as Annexure-2 to the writ petition
(iii) Issue a writ, order or direction in the nature of mandamus commanding the respondents to immediately release the property of the petitioner situated at plot no.48, Block-B, Sector -20 Noida, attached in pursuance Pvovincial Attachment order dated 27.11.2020.
At the outset Sri Manu Vardhana, learned counsel for the respondents has raised a question regarding the maintainability of the present writ petition by making a mention that the the petitioners are resident of Raipur, Chhatisgarh, the authority who has passed the provisional attachment order (PAO) was on 27.11.2020 pursuant to the Section 5(1) of PMLA of 2002 is also stationed at Raipur, Chhatisgarh and therefore, the Allahabad High Court has got no territorial jurisdiction to even entertain the present writ petition under Article 226 of the Constitution of India.
I have perused the order dated 27.11.2020 whose judicial scanning is sought by the petitioner. The said order, no doubt, was passed by Dy. Director (RPSZO) Directorate of Enforcement, Raipur, who while exploiting the powers under Section 5(1) PMLA , Act 2002 that the movable and immovable properties mentioned in it were provisionally attached for a period of 180 days with the specific direction to the petitioner that he shall not remove or part with or otherwise deal with such properties. In this list of properties, the property in question which is subject matter of the present writ petition is residential plot ad-measuring area 250 sq. mt. And covered area 382.345 sq. mt. Worth Rs. 45,00,000/- located on plot no. 48, Block No. B Sector 20 Noida in the name of M/s Xpress Minning Pvt. Ltd.
From the array of the parties, it is clear that petitioner nos. 2 and 3 are the Directors of the petitioner no.1 i.e. M/s Xpress Minning Pvt. Ltd.
Sri Anurag Khanna, learned Senior Counsel submits that no doubt that the petitioners are permanent resident of Raipur Chhatisgarh but the cause of action for which the present writ petition is being filed relates to above mentioned residential plot situate at Sector 20 Noida which fall within the territorial jurisdiction of this Court.
Sri Khanna, learned senior counsel for the applicant while responding to the preliminary objection raised by the learned counsel Enforcement Directorate has drawn the attention of the Court to Article 226(2) which reads thus:-
"226(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories"
From the analysis of clause (2) of Article 226 of the High Court for issuing a writ under Article 226 of the Constitution of India for cause of action, wholly or in part arises for the exercise of such powers, notwithstanding that the seat of such government or authority or the residents of such persons is not within those territories.
In order to buttress his contention Sri Khanna, learned Senior Counsel has relied upon the judgement of Hon'ble Apex Court in the case of Nawal Kishore Sharma Vs. Union of Inida and others reported in (2014) 9
Supreme Court Cases 329 in which it has been mentioned that on a plain reading of the amended provisions of Clause (2), it is clear that now the High Court can issue writ when the person or authority against whom writ is to be issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the courts territorial jurisdiction. The cause of action for the purposes of Article 226(2) of the Constitution of India, in all intent and purposes must be assigned with the same mentioning as envisaged under Section 20(c) of the CPC though the expression cause of action has not been defined either in the CPC or in the Constitution but in the common parlance it needs bundles of fact which is wholly necessary for the plaintiff to prove in the suit before he can succeed.
Thus on this score Sri Khanna, learned Senior Counsel has contended that since the property in question (cause of action) lies in State of U.P. at Noida which falls within the State of U.P. And therefore, it would come within the expression “wholly or in its part” and therefore, the present writ petition is maintainable.
Sir Manu Vardhana, learned counsel for the Enforcement Directorate has drawn the attention of the Court to full Bench judgement of this Court in the case of Manish Kumar Mishra Vs. Union of India and others reported in (2020) 6 ADJ 1.
Thus evaluating both the decision, this Court is of the view that there is a prayer of issuing a mandamus commanding the respondents to immediately release the property of the petitioner situate at Sector 20 Noida attached pursuant to the provisional attachment order dated 27.11.2020. This Court has got a partial jurisdiction over it and thus the present writ petition so far as this prayer no.2 and 3 are concerned, is maintainable.
Now coming out from the facts of the case, Sri Anurag Khanna, learned Senior Counsel while drawing the attention of the Court to the impugned attachment order dated 27.11.2020 this order passed by Dy. Director, Directorate of Enforcement, Raipur spells out :-
"Now, therefore, in exercise of powers conferred on me under Section 5(1) of Prevention of Money Laundering Act, 2002, I order that the movable and immovable properties mentioned below are provisionally attached for a period of 180 days and further order that you shall not remove, part with or otherwise deal with such properties without my prior permission."
In this regard, it has been contended by the learned counsel for the petitioner that Sub-sections (1) and (3) of Section 5 of PMLA 2002 specifically mentions that the effect of the order passed under Section 5(1) of the Act can not be beyond 180 days. Every order of attachment made under Section 5(1) of PMLA shall cease to have effect after the expiry of the period specified inthat sub-section or on the date of an order made under sub-section (3) of Section 8, whichever is earlier.
On this ground, learned Senior Counsel submits that since the order impugned is of 27.11.2020 and now we are in the last week of December 2021 and therefore it ceases to operate in the light of Section 5(3) of PMLA 2002.
It is contended by the learned counsel for the applicant that Section 5 of PMLA 2002 refers regarding "Attachment" on receipt of complaint of sub- section (5) of Section 5 of PMLA 2002 or application made under sub section (4) of Section 17 of the Act or application made under subsection (10) of Section 18 of the PMLA, if the “adjudicating authority” has reason to belief that any person has committed an offence under Section 3 of PMLA or actually involved in any process or activity connected (proceeds of crime).
Contention raised by the counsel for the applicant that the 'adjudicating authority' has defined Section (2A) of the Act, which refers Section 6 of the said Act, which mentions that the Central Government shall by notification appoint an Adjudicating Authority shall consist of Chair Person and two other Members with requisite qualification. In this regard, while drawing the attention of the Court to Annexure-2, the show cause notice is given by Registrar/ Administrative Officer of Adjudicating Authority, New Delhi dated 07.01.2021.
It has been contended by learned counsel for the applicant that the Registrar is not at all authorized or empowered to give any show cause notice to the petitioners. Besides this, the order impugned does not contained any reason or discussion of evidence as contemplated in subsection (5) of Section 5 of PMLA 2002.
When the Court has posed the question to the learned counsel for the petitioner that to invoke the jurisdiction of this Court under Article 226 of the Constitution of India straightway without exhausting his remedy under Section 6 of the Act, it is given to understand that office of the 'Adjudicating Authority' is lying vacant and the property so attached is lying unattended and there is considerable erosion of alleged attached property and this is the reason behind coming to t his court under Article 226 of the Constitution of India.
Sri Manu Vardhana, learned counsel for the Enforcement Directorate could not dispute this fact that the authority has contemplated under sub section (2) and (8) of Section 8 of the Act are vacant and this is peculiarity of this case. Admittedly the property undisputed attached by order dated 27.11.2020 for 180 days only but the courts/Adjudicating Authority are lying vacant, thus the petitioner cannot knock the door of the authority concern provided under the Act 2002.
Keeping in view the peculiarity of this case, it is directed that as an interim measure, the property in question i.e. residential plot measuring 250 sq.mts. and having covered area in 382.345 sq.mts. of Rs. 45,00,000/- located at Plot No.48, Block-B, Sector-20, Noida in favour of the applicant with the condition:-
(i) that before being released the petitioner no.2 shall furnish a Bank or other collateral security of worth Rs. One Crore before the respondents authority.
(ii) he shall give a written undertaking to the authorities concerned that the petitioner shall not remove/sell out/ mortgaged the property or making any change in the title or its valuation till further orders of this Court.
(iii) since this is an stop gap arrangement made, keeping in view the extraordinary peculiar circumstances that 'Adjudicating Authority' has mentioned in Section 8 is lying vacant. As soon as any authority is being appointed, this interim arrangement would be automatically evaporated and the petitioner would initiate the requisite proceedings before the Adjudicating Authority for redressal of his grievance and the Adjudicating Authority would pass appropriate order, unaffected by the observation made by this Court.
With the aforesaid observation, this criminal writ petition stands disposed off.
Order Date :- 17.12.2021 Abhishek Sri.