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TMI Blog2017 (8) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurgaon, Haryana, in view of the order dated 31/03/2014 of the Adjudicating Authority passed in O.C. No. 228/2013 confirming the provisional attachment order no. 3/2013 dated 28/10/2013. The relevant facts which led to proceedings under the PMLA against the applicant are briefly as under: a) that the applicant and one Mr. Ranjeet Singh were friends and the applicant being in the hotel business has two/three hotels in various parts of Delhi and outside; b) that Ranjeet Singh owned the house which was in the name of his wife bearing No. D-5/5, DLF Phase-I, Gurgaon, Haryana and the applicant's brother had seven and half acre of land in village Samrala, Punjab; c) that Ranjeet Singh also has few acres of adjoining land with the applicant in village Samrala and both had decided that Ranjeet Singh will transfer the ownership of DLF house and the applicant would transfer the seven and half acre of land in village Samrala to Ranjeet Singh, that both parties had agreed to the sale and purchase of the two properties, that the property in DLF was agreed to be sold to the applicant and his brother for a total sale consideration of Rs. 3.75 crore while the applicant was to sell the Samrala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Shri Ranjit Singh Kandola @ Raja Kandola S/o Shri Kewal Singh R/o Village Happowal P.S. Nanga, District Shaheed Bhagat Singh Nagar, Punjab and since the FIR disclosed the commission of schedule offences the Enforcement Department, Jalandhar registered an ECIR bearing No. 06/JL/2012 on 29.10.2012 and took up the investigation under Prevention of Money Laundering Act, 2002; 2(A) the following immoveable properties purchased by Smt. Rajwant Virk W/o Sh. Ranjeet Singh Kandola @ Raja Kandola in her name out of the proceeds of crime were provisionally attached under provisional attachment order No. 03/2013 dated 28.10.2013. I. House No. D-5/5, DLF Phase-I, Gurgaon, Harayana. II. Hotel Roop Palace, Village Tapal Majara, District Ropar, Punjab. The provisional attachment was confirmed by the Adjudicating Authority by the order dated 31.03.2014 in OC No. 228/2013. 2(B) after confirmation of the order of provisional attachment, the appeal No. FPA-PMLA/582/JLZO/2014 was filed by the applicant against the confirmation order dated 31.03.2014 of the Adjudicating Authority. 3. During the pendency of present appeal FPA- PMLA/582/JLZO/2014 this Tribunal passed a judgment dated 05/09/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 12.12.2014 on the following grounds: A. that withdrawal of the appeal in view of the judgment of this Tribunal in Central Bank of India has rendered the petitioner remedy less which is contrary to the all judicial disciplines as well as the various pronouncement of the Hon'ble Supreme Court of India; B. that applicant had filed the appeal against the order/administrative decisions of the respondents passed u/s 8(4) of the PMLA 2002, and as per the settled principle and the procedure followed by this Tribunal the applicant fall under the category of aggrieved person as contemplated u/s 26 of the Act and therefore, the present appeal filed by applicant was fully maintainable; C. that because as per the scheme of the PMLA 2002, powers of the Adjudicating Authority as well as of the Tribunal are segregated, that while the adjudication is u/s 8, the appeals are heard by the Tribunal u/s 26 of the Act; D. that as per section 11 there is no power vested with the Adjudicating Authority to modify or set aside its own order and once the order is passed u/s 8(3) of the Act and the authority become functus officio; E. that as per section 8(2), it was obligatory upon the Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, that no amount of consent or acquiescence on part of the parties themselves can create jurisdiction in Tribunal as jurisdiction is created by law, and whatever is without jurisdiction will remain so; K. that the procedure evolved by the Tribunal, viz. after the passing the order under Section 8 (3), under PMLA, any person may exercise his right under section 8(2), by filing an application under the latter provision, is beyond the powers of the Hon'ble Tribunal as the power to modify/review/recall any order passed by the Tribunal, has been expressly given to the Tribunal by the legislature and no such power has been given to the Adjudicating Authority, under PMLA by the legislature. Reliance has been placed on Rajeev Hitendra Pathak v. Achyut Kashinath Karekar, (2011) 9 SCC 541 : (2011) 4 SCC (Civ) 781 at page 550 in which it was held "34. On a careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the power of review and the powers which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence or non- existence of a statute, and that assumption formed the basis of the decision. This exception to the rule of Stare decisis is probably best regarded as an aspect of a broader qualification of the rule, namely, that courts are not bound to follow decisions reached per incuriam." The proposition that a decision per incuriam need not be followed as a binding precedent is well established. If authority is needed for this proposition, we may refer to the decision of the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. where Lord Greane, M.R observed as follows:- "Where the court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute, the position is very different. It cannot in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples in decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that any such person who has a vested right in attached property to be heard before the Adjudicating Authority, can approach the Authority is beyond the four corners of the statute, that it has been held in M.P. Waqf Board V. Subhan Shah (2006) SCC 10 SCC 696, 703-04 Para 28, that where a statute creates different authorities to exercise their functions thereunder, each of such authority must exercise the functions within the four corners of the statute; that it has been further held in V.K. Ashokan V. Asst. Excise Commissioner (2009) 14 SCC 85,110 para 54, that, any action which is not within the domain of the statutory authority would be illegal and without jurisdiction conferred by the statute. Q. that after confirmation of the provisional attachment order the Adjudicating Authority has become functous officio in terms of the description of the concept of functus officio by the Hon'ble Supreme Court in SBI V/s S.M. Goyal (2008) 8 SCC 92. R. that division bench of Hon'ble High Court of Delhi in case of India Tourisms Development Cooperation Ltd. Vs Delhi Administrative and others 207 (2014) Delhi law times 471 (DB) has held in Para 20 of the judgment that it is settled lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money-laundering and confiscated by the Central Government: Provided that where 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. 1) The Adjudicating Authority shall, after- a. considering the reply, if any, to the notice issued under sub- section (1); b. hearing the aggrieved person and the Director or any other officer authorized by him in this behalf; and c. taking into account all relevant materials placed on record 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 has been issued, such person s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether this obligation has to be discharged before the order under Section 8(3) is passed or a post-decisional hearing would suffice to meet the requirements of law. In the case of Central Bank of India (Supra) this Tribunal has taken a view that the proviso to sub- Section 2 of Section 8 speaks of only affording a opportunity of being heard to a person claiming right in the property but the timing of such hearing need not necessarily be prior to passing of the order under Section 8(3). 13. In the light of said provisions, we would like to differ with the view taken by the Tribunal in the Central Bank of India as such a view would in fact lead to review of its own orders by the Adjudicating Authority either confirming or modifying its previous orders as any hearing afforded under proviso to sub-Section 2 of Section 8 has to necessarily result into an order. Otherwise such a hearing will have no meaning. If such a hearing is conducted after an order under Section 8(3) has already been passed such hearing may result in order which may be at variance with the previous orders under Section 8(3). 14. Such a scenario would definitely be in contradiction with the provisions of the PML ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed. 1. All the persons so summoned shall be bound to attend in person or through authorized agents, as the Adjudicating Authority may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. 2. Every proceeding under this section shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)." 16. The above section do not entrust the Adjudicating Authority with any powers of review of its own orders. Such a power cannot be enjoyed and exercised by the Adjudicating Authority unless it is specifically provided in the law. As per the existing provisions of PMLA the Adjudicating Authority has no powers to review its own orders. Therefore, any order passed by the Adjudicating Authority which amounts to reviewing of its own orders would be against the provisions of PMLA and not sustainable. As regards the powers of review of its orders with the Appellate Tribunal, section 35 of the PMLA specifically provides for the same. The relevant portions of Section 35 are reproduce below: "35(1) The Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e their power from express provisions of the statute and the powers which have not been expressly given by statute cannot be exercised. In the PMLA while the Appellate Tribunal has been given the powers of review under Section 35, no such powers have been vested in the Adjudicating Authority. Thus, Adjudicating Authority cannot exercise power of review. 20. It has also been pleaded by the applicant that Adjudicating Authority after confirmation of the provisional attachment order has become functus officio due to efflux of time of 180 days, which is purely command of law and the same cannot be abrogated in the garb of Section 8(2) of PMLA. In this regard, we find that this Tribunal had deliberated on this aspect in the Central Bank case (Supra) where in para 11 it was observed as under: "The words of statute, proviso to section 8(2) of Act are clear and unambiguous and are reasonably susceptible to one meaning only. If that be so, it cannot be construed to mean that the person who has not been given notice under Section 8(1) of the Act and whose property is sought to be attached or has been attached and attachment order has been confirmed was entitled for hearing only if he had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-rule (3) provides that the judgment may be pronounced by dictation in an open court to a shorthand writer [if the Judge is specially empowered (sic by the High Court) in this behalf]. The proviso thereto provides that where the judgment is pronounced by dictation in open court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review. Thus, where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open court, that itself amounts to pronouncement. But even after such pronouncement by open court dictation, the Judge can make corrections before signing and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard to the applicant in terms of proviso to section 8(2) and also the other defendants in OC No. 228/2013.
II. The Adjudicating Authority shall fix a date of hearing not beyond 45 days from the date of receipt of this order. The applicant and the defendants in OC No. 228/2013 shall appear before the Adjudicating Authority on the date fixed by the Adjudicating Authority for hearing. The Adjudicating Authority shall pass its order in remand proceedings within 45 days of the date of hearing.
III. The applicant and the defendants in OC No. 228/2013 shall not sell, dispose of, alienate or create any third party interest in the property viz. D-5/5, DLF Phase-I, Gurgaon, Haryana during the pendency of remand proceedings before the Adjudicating Authority and the provisional attachment order No. 03/2013 dated 28.10.2013 in ECIR/06/JLZO/2012 shall remain alive. The applicant shall also continue to deposit charges for use and occupation of the said property @ of Rs. 50,000 per month to be deposited by 15th date of the next English calendar month.
IV. This order has been passed on a question of law itself and we are not expressing any opinion on the merits of the case. X X X X Extracts X X X X X X X X Extracts X X X X
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