TMI Blog2020 (12) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal from ordering de-sealing the attached property and that too for a limited period. It goes without saying that exercise of such power will obviously be a subject matter of adjudication depending upon the facts and circumstances where such discretion has been exercised by the Appellate Tribunal. This power, although is discretionary in nature, but the same is required to be based upon proper appreciation of the provisions of the statute and its applicability, which includes non-compliance thereof. This answers the basic issue with regard to jurisdiction of the Appellate Tribunal to pass an interim order or granting an interim relief for a short period of time and that too for a specific purpose. Admittedly, the proceedings which have been initiated by the Enforcement Directorate, are against the respondent alone and the property in question is a joint property, of which one of the co-sharers is Abhay Singh Chautala, who is not a party to the present appeal - application for seeking interim restoration of the attached property has been allowed alongwith the application for the same relief by respondent-Om Prakash Chautala. As the appeal has been filed against Om Prakash C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to get married on 27.11.2020 and 30.11.2020. Prayer was made for interim restoration of the property attached between 15.11.2020 to 30.11.2020 with additional 15 days time to prepare to be used and vacate the property before and after the function. On hearing the parties, Appellate Tribunal has partly allowed the said applications by directing the Enforcement Directorate (appellant herein) to de-seal the attached property by 06.11.2020 and hand over the possession of the same to respondent-Om Prakash Chautala/intervener Abhay Singh Chautala for the purpose of aforesaid marriages subject to the condition that they would hand over the possession back to the appellant on or before 07.12.2020, who may thereafter seal the said property till further orders. 2. The basic ground, which was taken by the appellant, opposing the interim prayer for restoration of the property, was that the Appellate Tribunal had no power to restore the property in the light of the provisions of Section 8(8) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the Act ) as the said power has been conferred on the Special Court, which is ceased of the trial in the charge sheet, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court with regard to offence of money laundering, where even the use of said tainted property has been mentioned as an offence, an activity which continues on possession of the said property also falls within the said offence. It is asserted on this basis that by passing of such an interim order, the Appellate Tribunal would perpetuate an offence, which would go against the very basic mandate of statute. Referring to Section 8(4) of the Act, it is asserted that on confirmation of the order of attachment by the Adjudicating Authority, the Enforcement Directorate has been mandated to forthwith take possession of the property, which is attached under Section 5 of the Act. Referring to Section 8(6) of the Act, it is asserted that the Special Court has the power to release the property only after the conclusion of trial, where the commission of offence of money laundering has not been found to have taken place or the property is not involved in the same. Referring to Section 26(4) of the Act, it has been submitted that the Appellate Tribunal although has been given powers to pass such orders as it thinks fit but that does not mean that by way of an interim order, it would perpetuate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013, wherein in relation to immovable property confirmed by the Adjudicating Authority is in the form of a land, building, house, flat etc. and is under joint ownership, the authorized officer may accept the equivalent value of fixed deposit to the extent of the value of the share of the concerned person in the property estimated by the authorized officer, to be involved in money laundering. He, on this basis, asserts that the respondent herein had given an undertaking before the Appellate Tribunal to deposit a sum of ₹ 1,99,87,300/- in the shape of FDR with the office of appellant-Enforcement Directorate forthwith for restoration of the attached property during the pendency of the appeal. He, therefore, contends that taking of possession of the property is not always mandated, as has been asserted by counsel for the appellant. 5. As regards the jurisdiction of the Appellate Tribunal for passing an interim order as the one impugned, reference has been made to Section 35 of the Act, which deals with the procedure and powers of the Appellate Tribunal. It is asserted that the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jagtu Vs. Suraj Mal and others,(2010) 13 Supreme Court Cases 769 ix. Chaman Lal Vs. State of Punjab and others, (2014) 15 Supreme Court Cases 715 x. Ratilal Bhanji Mithani Vs. State of Maharashtra and others, 1979 AIR (SC) 94 xi. V.C.Shukla Vs. State through C.B.I., 1980 AIR (SC) 962 xii. Union of India Vs. Major General Madan Lal Yadav (Retd.), 1996 AIR (SC) 1340 xiii. State of U.P. and another Vs. Synthetics and Chemicals Ltd. and another, 1991 (4) SCC 139 xiv. M/s Hyder Consulting (UK) Ltd. Vs. Governor, State of Orissa through Chief Engineer, 2015 AIR (SC) 856 7. We have heard counsel for the parties and with their assistance have gone through the records of the case as also the judgments referred to above. 8. The primary question, which needs to be gone into in the light of the pleadings, facts and the law cited by the counsel for the parties is with regard to the power of the Appellate Tribunal to pass an order, allowing the application for interim relief during the pendency of the appeal, such as restoration of the property for a specific purpose for a short period of time, as in the present case. For this provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act `pass such orders thereon as it thinks fit' as nonest because it gives ample powers to the Appellate Authority to grant interim relief in deserving cases subject, however, the provisions of the statute. 9. The only bar, if any, which has been projected by counsel for the respondent with reference to Section 8 of the Act, would step in only where the trial has commenced before the Special Court, which, in the present case, admittedly is not the position as till date no charges have been framed against the respondent. The said power of the Special Court, therefore, would not be applicable in any case at this stage, which again is an aspect to be looked into in an appropriate case. 10. The contention of learned counsel for the appellant that after the passing of the order by the Adjudicating Authority, confirming the order of attachment of a property, mandates taking possession of the property attached under Section 5, suffice it to say that this mandate is only relatable and applicable to the Enforcement Directorate, which does not bar the Appellate Tribunal to pass an order for release of the said property so attached temporarily in the given facts and circumstances ..... 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