TMI Blog2022 (10) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... slature not to wait for the period of limitation prescribed for filing of appeal under Section 26 of the Act of 2002. Rule 5(2) of the Rules of 2013, however, relaxes the mandate of word forthwith by providing for issuance of ten days notice to the owner/occupier of the attached property. The person aggrieved by the order of confirmation of provisional attachment made by the Adjudicating Authority is well within his/her right to file appeal under Section 26 of the Act of 2002 within this period of ten days and may persuade the Appellate Authority to intervene in the matter - One may not come across any legislation where the effect and operation of decree, judgment or order is deferred till the expiry of period of limitation prescribed for filing appeal or revision against such decree, order or judgment, as the case may be. One would rarely find a provision of automatic stay of decree, order or judgment appealable or revisable before higher forum or authority till the aggrieved person avails the remedy before such forum. It is true that in some circumstances or in a given case, ten days time available to the aggrieved person to approach the Appellate Tribunal by way of an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge For the Petitioner(s) : Mr. Salih Pirzada, Advocate For the Respondent(s) : Mr. T.M.Shamsi, DSGI JUDGMENT 1. In this petition the petitioner has called in question the eviction notice dated 23rd September, 2022 [ the impugned notice ] issued by the Directorate of Enforcement, Sub Zonal Office, Jammu purportedly under Section 8(4) of the Prevention of Money Laundering Act, 2002[ the Act of 2002 ]. The petitioner also prays for a direction to the respondents not to interfere with the peaceful enjoyment of the property subject matter of the impugned eviction notice. 2. The impugned notice is assailed on the ground that the order of attachment of the subject property confirmed by the Adjudicating Authority under Section 8(3) of the Act of 2002 is appealable before the Appellate Tribunal within a period of forty five (45) days from the date on which a copy of the impugned order of attachment is received by the person aggrieved. This is so provided under Section 26 of the Act of 2002. The impugned eviction notice provides only ten days time to the petitioner to vacate the subject property, and in case the impugned eviction notice is given effect to before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 nor possession of the attached property can be taken over, cannot be accepted. 5. Having heard learned counsel for the parties and perused the material on record, a short question that arises for consideration can be stated as under:- Whether the Director or any other officer authorized by him in this behalf is entitled to take possession of the property attached under Section 5 or frozen under Sub Section 1-A of Section 17 after serving ten days notice under Rule 5(2) of the Rules of 2013 or should wait for ten days after the expiry of 45 days period prescribed for filing appeal before the Appellate Tribunal against the order of Adjudicating Authority confirming the attachment of the property made under Sub Section 1 of Section 5 or retention of property or record seized or frozen under Section 17 or 18? 6. Section 5, which deals with attachment of the property involved in money laundering, reads thus:- 5 Attachment of property involved in money-laundering. - (1) Where the Director, or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, has reason to believe (the reason for such belief to be recorded in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the 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. (5) The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority. 7. From a reading of Section 5, it clearly transpires that the Director Enforcement or any other officer not below the rank of Deputy Director authorized by him may provisionally attach properties acquired by the proceeds of crime for a period not exceeding 180 days from the date of order provided such authority or officer has reasons to believe that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord before him, by an order, record a finding whether all or any of the properties referred to in the notice issued under sub- section (1) are involved in money-laundering: Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering. (3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of section 5 or retention of property or record seized or frozen under section 17 or section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property or record shall- (a) continue during investigation for a period not exceeding three hundred and sixty-five days or the pendency of the proceedings relating to any offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as a result of the offence of money laundering: Provided that the Special Court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering: Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed. [Underlined by me] Rule 5(2) of the Rules of 2013 reads thus:- 5(2) Where the immovable property confirmed by the Adjudicating Authority is in the form of a land building, house, flat etc. and is occupied by the owner, the authorized officer shall issue a notice of eviction of ten days so as to prevent the person from enjoying such property and after issuing of such notice if the premises is not vacated within the stipulated time, such occupant shall be evicted and the possession shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 8(4) depends upon the sustainability of the order of Adjudicating Authority passed under Sub Section 3 of Section 8 of the Act of 2002. If the Appellate Tribunal hearing appeal against the order of Adjudicating Authority passed under Section 8(3) of the Act of 2002 stays the operation of the impugned order, as a necessary consequence thereof, eviction proceedings initiated in terms of Section 8(4) of the Act shall also come to a grinding halt. 12. The scope of Sub Section 4 of Section 8 of the Act of 2002 has been discussed by the Supreme Court in the case of Vijay Madanlal Choudhary and others v. Union of India and others, 2002 SCC OnLine SC 929 and it is now trite law that Sub Section 4 of Section 8 providing for taking possession of the attached property ought to be invoked only in exceptional situation keeping in view the special circumstances of the case. Mere confirmation of the provisional attachment order by the Adjudicating Authority is not enough for the authorized officer to invoke Section 8(4) and take over the possession of the attached property irrespective of the facts and circumstances of the case. The Supreme Court while repelling challenge to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe that direction under Section 8(4) for taking possession of the property in question before a formal order of confiscation is passed merely on the basis of confirmation of provisional attachment order, should be an exception and not a rule. That issue will have to be considered on case-to-case basis. Upon such harmonious construction of the relevant provisions, it is not possible to countenance challenge to the validity of sub-section (4) of Section 8 of the 2002 Act. 13. From the judgment of Vijay Madanlal Choudhary (supra), it is abundantly clear that Section 8(4) shall be resorted to by the authorized officer only by way of exception and not as a rule. The vires of Section 8 of the Act of 2002 have been upheld. In the face of clear exposition of law by the Supreme Court in the case of Vijay Madanlal Choudhary (supra), there is hardly any scope for the argument that Section 8(4) cannot be resorted to even in appropriate case without first waiting for the expiry of limitation provided for filing appeal under Section 26 of the Act of 2002. The contrary judgment relied upon by the learned counsel for the petition rendered by Madras High Court in the case of B. Kamalam (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the interpretative process only when the language of the Statute is ambiguous and admits of more than one meaning or where plain language used in the Statute throws up absurd results. It is, thus, imperative that while interpreting a Statute, efforts should be made to give effect to each and every word used by the legislature. The Courts must presume that legislature has used each word in the Statute for a purpose. It hardly needs to be emphasized that we are a constitutional democracy and the three organs of the State i.e. Legislature, Executive and Judiciary work independently in their respective spheres earmarked by the Constitution. While it is the duty of the legislature to enact laws, the executive is enjoined to enforce these laws. Judiciary comes in where interpretation and understanding of the laws enacted by the legislature is called for. The doctrine of separation of power put an obligation on each one of the three organs to work within their defined sphere and try not to encroach upon each other s field. Judiciary ought not to venture into in the interpretative process, which has the effect of legislating on a subject matter. Need of the society for a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given case, ten days time available to the aggrieved person to approach the Appellate Tribunal by way of an appeal may seem to be a bit short of reasonable time, yet this Court cannot in the disguise of interpretative process substitute ten days time given under Rules 5(2) of the Rules of 2013 and the expression forthwith used in Section 8(4) of the Act of 2002 by forty five (45) days or (fifty five (55) days , as is contended by the learned counsel for the petitioner. Notwithstanding the fact that in some cases ten days time prescribed for taking possession of the attached property may result into harsh results but this Court cannot help, more particularly, when the Supreme Court has already upheld the vires of Section 8(4) of the Act of 2002 and has not found fault with any of the provisions of the Act of 2002 and the Rules framed thereunder. 18. By accepting the plea of the petitioner on the basis of the observations made by Madras High Court in B. Kamalam (supra), this Court would be rewriting the Statute by substituting ten days by forty five days plus ten days for taking over the possession of the attached property, which, I am afraid, is not the province of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the Court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional. 14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. and others vs. Vijay Anand Maharaj : AIR 1963 SC 946 ; Rananjaya Singh vs. Baijnath Singh and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make an attempt to uphold the rules and interpret the same in such a manner which would make it workable. 36. It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided. 21. In Satheedevi Vs. Prasanna and another (2010) 5 SCC 622, the Apex Court in paragraph Nos. 12 and 13 of the judgment held thus:- 12. Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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