TMI Blog2020 (12) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the aforesaid properties in question. There is a clear violation of principle of natural justice. The appellants ought to have noticed by the respondent (ED) and Adjudicating Authority before deciding on attachment of the aforesaid properties - The Adjudicating Authority shall, in accordance with the provisions of sub-section(2) of Section 8 of the PMLA, 2002, record finding whether all or any of the properties mentioned above are involved in money laundering and pass appropriate orders in accordance with law. Matter remanded to the Adjudicating Authority for re-adjudication of the case qua the appellants within 150 days from the date of receipt of this order or from the date of the order when either of the parties brings it to the knowledge of this order, before the Adjudicating Authority - appeal allowed by way of remand. - MP-PMLA-6425/CHN/2019 (Stay), FPA-PMLA-3219/CHN/2019 - - - Dated:- 24-12-2020 - Shri G. C. Mishra Acting Chairman For the Appellants : Mr. Anil Kumar Mishra, Advocate, Ms. Ridhima Malhotra, Advocate, Ms. Priyadarshini, Advocate For the Respondent (ED) : Mrs. Shilpi Satyapriya Satyam, Advocate JUDGMENT The hearing of the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.01.1974 and thereafter, the first appellant had executed a settlement deed vide document no.1142 of 1974 dated 11.07.1974 in favour of her mother Smt. Meenakshi Achi and her brother, the second appellant, to an extent of 2 acres out of 5.74 acres in UDR Survey No.207/2A and after that settlement deed the said property has been subdivided as 3.74 acres in new survey no.91/2A1 in favour of first appellant and 2 acres in new survey no.91/2A2 in favour of Smt. Meenakshi Achi and second appellant. The mother of the appellants died in the year 2002, living the appellants as her only surviving legal heirs and that subsequent to the death of their mother, the appellants executed a partition deed between themselves on 02.08.2013 vide document no.1759 of 2013 and that in the partition the first appellant got 4.24 acres to her share and the second appellant got 1.50 acres to his share and that out of the aforesaid 5.74 acres only 1 acre of land was given to one Shri Muthaiya Thevar for cultivation and maintenance of the same as a cultivating tenant as per the records of the Tenancy Act. (ii) The cultivation rights of the aforesaid properties were only given to Shri Muthaiya Thevar whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the impugned order it is also submitted that the respondent as well as the Adjudicating Authority had applied their common sense only and came to a finding only understanding that under agricultural land law, I understand that there is law that land belongs to the tiller of land if he has tilled the land for a particular period (may be three years) and in this case lease continued to till the land for very very long time as claimed by defendants themselves. Further during the course of hearing, the learned counsel for the appellants has referred to several documents in respect of his contentions that how the properties in question have been inherited from the appellant s parents and how they have given the questioned lands to Shri K. Ashokan Shri Muthaiya Thevar for cultivation purpose and only the cultivable rights have been transferred not the ownership of the properties. It is the contention of the learned counsel for the appellants that the Investigating Officer has himself assumed that in view of the long cultivable rights the cultivators have become the owners of the questioned lands and the ownership deemed to have been transferred. It is also submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property. In response, the said SRO vide letter dated 25.11.2016, enclosed 39 numbers of documents related to the persons mentioned in the Directorate s reference. The said 39 documents included the documents relating to the properties attached and described in Sl. No.xii xxv of Schedule A of the Para 33 of PAO dated 22.12.2016 and that the main contention of the Appellant herein is that they are possessing the said lands in the status of a cultivating tenancy and have only lease cultivating tenancy rights on the said lands and submitted that although the document may evidence that the Defendants have only a cultivating tenancy rights, it is per se , an ownership and the following substantiate the contentions that: In respect of both the properties mentioned above, inter-alia, stated that the consideration amount of ₹ 81,000/- and ₹ 50,000/- were paid , being the market value to the executants and thereby the cultivation rights have been transferred to Shri S. Sankaranarayanan Shri P.K.M. Selvam and these transactions were made as disguised sales which are common where the actual owner is not available and that the person in the possession of the lands for many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent (ED). A duty is cast upon the respondent to examine all those persons who are having interest in the property for coming to a conclusion regarding the commission of offence under PMLA, 2002. The word person interested has been explained under Section 5(4) of the PMLA, 2002 which reads as follows: Section 5.Attachment of property involved in money-laundering. (4) Nothing in this section shall prevent a person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment. Explanation .- For the purposes of this sub-section person interested , in relation to any immovable property, includes all persons, claiming or entitled to claim any interest in the property. On perusal of the language of the aforesaid section, it appears that by attaching the properties without any notice, the respondent has deprived the appellants from the right to enjoyment of property. Section 8 in The Prevention of Money-Laundering Act, 2002 reads as below: 8. Adjudication. - (1) On receipt of a complaint under sub-section (5) of section 5, or applications made under sub-section (4) of section 17 or under subsection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for cultivation purposes for a long period amounts to lose of the ownership. It can only be decided by Competent Civil Court. Nothing has been submitted during the course of hearing that Shri P.K.M. Selvam or Shri S. Sankaranarayanan or the transferors of cultivation rights to these two persons have ever raised any dispute that the present appellants are not the owners of the aforesaid properties in question. None of the justification advance by the respondent has merit in this regard. There is a clear violation of principle of natural justice. The appellants ought to have noticed by the respondent (ED) and Adjudicating Authority before deciding on attachment of the aforesaid properties. The Adjudicating Authority shall, in accordance with the provisions of sub-section(2) of Section 8 of the PMLA, 2002, record finding whether all or any of the properties mentioned above are involved in money laundering and pass appropriate orders in accordance with law. In view of the above, the appeal is allowed. The impugned order dated 31.05.2017 is set-aside and remanded to the Adjudicating Authority for read-judication of the case qua the appellants within 150 days from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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