TMI Blog2020 (11) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... e Provisional Attachment Order dated 13.11.2019 having expired without any order under Section 8(3) of the Act being passed by the Adjudicating Authority, it is held that the Adjudicating Authority has been rendered functus officio and cannot proceed with the Original Complaint, being O.C. No. 1228/2019 pending before it. The Notice/Summons dated 26.05.2020 is accordingly set aside. In the present case, it is restrained from making any comment on whether the period of total lockdown declared by the Central Government, that is from 24.03.2020 to 20.04.2020, can be excluded for computation of the 180 days, as it is not disputed that even on exclusion of this period, the 180 days would have expired on 16.06.2020, the returnable date of the notice issued by the Adjudicating Authority. Petition allowed. - W.P.(C) 3551/2020 & 12626/2020 - - - Dated:- 18-11-2020 - HON'BLE MR. JUSTICE NAVIN CHAWLA Petitioners Through: Mr. Dayan Krishnan, Sr. Adv. with Mr. Arshdeep Singh, Mr. Akshat Gupta, Mr. Sanjeevi Seshadri, Ms. Rajshree Sharma, Advs. Respondents Through: Mr.Amit Mahajan, CGSC with Ms.Mallika Hiremath and Mr.Atul Tripathi, Advs. 1. This petition raises an int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction/ order declaring that the Provisional Attachment Order No. 10/2019 dated 13.11.2019 issued by the Respondent No.1 ED and all proceedings emanating therefrom including Original Complaint No. 1228/2019 has lapsed and ceased to have any effect on and from the expiry of 180 day period provided under Section 5 PMLA i.e. from 12.05.2020. PETITIONERS SUBMISSIONS: 8. The learned senior counsel for the petitioners has submitted that the provisions of sub-section (1) and sub-section (3) of Section 5 provide for the maximum period of the validity of a Provisional Attachment Order and on expiry of the said period, the Provisional Attachment Order ceases to have effect without any further action/omission on part of any Authority. He submits that there is no provision in the Act by which such period can be extended by any Authority or even by a Court of law. He places reliance on the judgment of the Supreme Court in S.Kasi vs. State 2020 SCC OnLine SC 529. 9. He submits that the effect of an order under Section 5(1) of the Act is deprivation of the right of a person to enjoy his property. The same cannot be extended for an indefinite period. The right to enjoyment of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India has to be excluded, that is between 24.03.2020 to 20.04.2020, 180 days from passing of the Provisional Attachment Order would have expired by 16.06.2020, which was the next date of hearing, rendering the Adjudicating Authority functus officio thereafter. 14. He further submits that this Court on 06.07.2020 was pleased to stay further proceedings in the Complaint pending before the Adjudicating Authority. The period of 180 days having already expired as on 06.07.2020, even the benefit of the proviso to Section 5(1) of the Act would not be available to extend the period of validity of the Provisional Attachment Order. RESPONDENTS SUBMISSIONS: 15. On the other hand, the learned counsel for the respondents submits that the Supreme Court by the above referred orders passed in Suo Moto W.P.(C) No.3/2020, has extended the period of limitation for various proceedings, which would also include proceedings before the Adjudicating Authority. He submits that the period of the Provisional Attachment Order, therefore, stands extended in terms of the said orders of the Supreme Court. Placing reliance on sub-section (1) of Section 8 of the Act, he submits that a notice of not le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aundering. - (1) Where the Director, or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... III. 23. Therefore, a reading of sub-section (1) of Section 5 with Section 2(1)(d) of the Act leaves no manner of doubt that the effect of the Provisional Attachment Order is deprivation of the right to property. 24. Article 300A of the Constitution creates a Constitutional right in every person to hold and enjoy his property, unless deprived by authority of law. In M.C. Mehta (supra), the Supreme Court has emphasized that when the statue prescribes a mode, the property deprivation cannot be done in other modes. It was further emphasized that Statutes which encroach upon rights, whether as regards person or property, are subject to strict construction in the same way as penal Acts. They should be interpreted, if possible, so as to respect such rights and if there is any ambiguity, the construction which is in favour of the freedom of the individual should be adopted; they must be given a strict construction. It was further reiterated that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the Act are only creature of statute and must act within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the Karnataka Town and Country Planning Act, a comprehensive development plan was prepared. It indisputably is still in force. Whether the amendments to the said comprehensive development plan as proposed by the Authority would ultimately be accepted by the State or not is uncertain. It is yet to apply its mind. Amendments to a development plan must conform to the provisions of the Act. As noticed hereinbefore, the State has called for objection from the citizens. Ecological balance no doubt is required to be maintained and the Courts while interpreting a statute should bestow serious consideration in this behalf, but ecological aspects, it is trite, are ordinarily a part of the town planning legislation. If in the legislation itself or in the statute governing the field, ecological aspects have not been taken into consideration keeping in view the future need, the State and the Authority must take the blame therefor. We must assume that these aspects of the matter were taken into consideration by the Authority and the State. But the rights of the parties cannot be intermeddled with so long as an appropriate amendment in the legislation is not brought into force. *** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . St. J. Langan.) 130. This Court in Devinder Singh held that the Land Acquisition Act is an expropriatory legislation and followed the case of Hindustan Petroleum Corpn. v. Darius Shapur Chenai . Therefore, it should be construed strictly. The Court has also taken the view that even in cases of directory requirements, substantial compliance with such provision would be necessary. (emphasis supplied) (g) In Ramchandra Ravindra Waghmare v. Indore Municipal Corporation, (2017) 1 SCC 667 , it was opined: 67. It was also submitted that town planning and municipal institutes are regulating and restricting the use of private property under the aforesaid Acts. They are expropriatory legislation . Thus they are liable to be construed strictly as laid down in Indore Vikas Pradhikaran v. Pure Industrial Coke Chemicals Ltd. (h) In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke Chemicals Ltd., (2007) 8 SCC 705 , it was held: 57. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade's interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300-A of the Constitution. (emphasis supplied) 25. In the present case, the Act clearly deprives the person against whom the Provisional Attachment Order is passed of his right to deal in the property against which the attachment is ordered. Such deprivation can therefore, be for a maximum of 180 days and no further, except where such order is confirmed by the Adjudicating Authority prior thereto under Section 8(3) of the Act. Once the 180 day period has lapsed without such order being passed under Section 8(3) of the Act, the Provisional Attachment Order ceases to have effect and therefore, there is no order before the Adjudicating Authority to confirm under Section 8(3) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipurai v. Union of India, AIR 1962 SC 113=(1962) 2 SCR 880 and Fairgrowth Investments Ltd. v. Custodian, (2004) 11 SCC 472 . Hardship cannot thus be a ground to interpret the provision so as to enlarge the time, where the statute provides for a specific time, which, in our opinion, has to be complied in letter and spirit. 24. This Court, in the case of Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451 has, in paragraph 23, held as under: 23. There may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual, but the Court has no choice but to enforce it in full rigor. It is a well settled principle of interpretation that hardship or inconvenience caused, cannot be used as a basis to alter the meaning of the language employed by the legislature, if such meaning is clear upon a bare perusal of the statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it causes hardship or possible injustice. 25. While concluding, it was observed that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uous, it has no scope for any interpretation on equitable ground. 28. In view of the above dicta, the submission of the learned counsel for the respondents that as the delay in proceedings before the Adjudicating Authority cannot be blamed on the respondents, the respondents must not be penalized and the time period should be extended, cannot be accepted. It is not a question of penalization of the respondents for the delay, but of application of the mandate of law from which there is no escape. Equally, the principle of Actus Curiae Neminem Gravabit can also have no application. 29. The reliance of the learned counsel for the respondents on the orders passed by the Supreme Court in Suo Motu Writ Petition (Civil) No. 3/2020, is also unfounded. The Supreme Court, in its order dated 23.03.2020, directed as under:- This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e extended with effect from 15.03.2020 till further orders to be passed by this Court in the present proceedings. In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown. In view of the above, the instant interlocutory application is disposed of. 31. In fact, the most relevant in this series of orders to the present controversy is the order dated 10.07.2020, which clearly shows that the above referred two orders of the Supreme Court were only in relation to the period of limitation and did not extend the period to do something required under a Statute or the period of validity of an order, as in the present case. Realizing such difference, the Supreme Court extended the period to pass an Arbitral Award under Section 29A and for completion of pleadings under Section 23(4) of the Arbitration and Conciliation Act, 1996 as also for completing the process of compulsory pre-litigation, mediation and settlement under Section 12A of the Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of all notices, summons and exchange of pleadings Service of notices, summons and exchange of pleadings/documents, is a requirement of virtually every legal proceeding. Service of notices, summons and pleadings etc. have not been possible during the period of lockdown because this involves visits to post offices, courier companies or physical delivery of notices, summons and pleadings. We, therefore, consider it appropriate to direct that such services of all the above may be effected by e-mail, FAX, commonly used instant messaging services, such as WhatsApp, Telegram, Signal etc. However, if a party intends to effect service by means of said instant messaging services, we direct that in addition thereto, the party must also effect service of the same document/documents by e-mail, simultaneously on the same date. Extension of validity of Negotiable Instruments Act, 1881I.A. Nos. 48461 and 48672/2020 (IA. No. 48671/2020, 48673/2020) I.A. No. 48671/2020 for impleadment is allowed. With reference to the prayer, that the period of validity of a cheque be extended, we find that the said period has not been prescribed by any Statute but it is a period prescribed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property. (Emphasis supplied) 34. At this stage reference to the judgment of the Supreme Court in S. Kasi (supra) would also be apposite. The Supreme Court while considering the effect of the order dated 23.03.2020 passed in Suo Moto W.P.(C) No. 3/2020 on the right of the accused under Section 167(2) of the Code of Criminal Procedure to be released on bail on non-submission of charge sheet within the prescribed period by the prosecution, held as under:- 16. The reason for passing the aforesaid order for extending the period of limitation w.e.f. 15.03.2020 for filing petitions/applications/suits/ appeals/all other proceedings are indicated in the order itself. Two reasons, which are decipherable from the order of this Court dated 23.03.2020 for passing the order are :- i) The situation arising out of the challenge faced by the country on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions which recognizes the Right of Personal Liberty of a person as enshrined in the Constitution of India. The order of this Court dated 23.03.2020 never meant to curtail any provision of Code of Criminal Procedure or any other statute which was enacted to protect the Personal Liberty of a person. The right of prosecution to file a charge sheet even after a period of 60 days /90 days is not barred. The prosecution can very well file a charge sheet after 60 days /90 days but without filing a charge sheet they cannot detain an accused beyond a said period when the accused prays to the court to set him at liberty due to non-filing of the charge sheet within the period prescribed. The right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C. Following observations of Madras High Court in the impugned judgment are clearly contrary to the order dated 23.03.2020 of this Court:- ....The Supreme Court order eclipses all provisions prescribing period of limitation until further orders. Undoubtedly, it eclipses the time prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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