9911796707
TMI Blog2023 (9) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... lable before the authorities to come to such satisfaction. This Court is of the view that the reliefs prayed for appear to be pre-emptive in nature whereby proceedings under the Act, which are yet to reach a final stage, has been sought to be interfered with. Under those circumstances, this Court is of the opinion that the burden on the part of the petitioners would be on a higher pedestal to make out a case that the proceedings under the Act as well as the provisional attachment order are prima facie bad in law. Such prima facie projection would necessarily require the party to show that either there is a jurisdictional error in the proceedings or that there is blatant violation of the provisions of the Act. This Court in exercise of the extra ordinary powers under Article 226 of the Constitution of India has to confine its scrutiny only to the decision making process. This Court is of the view that when the challenge to the action of the respondent authority in declaring the degrees awarded by the petitioner- University was negated, there may not remain much scope for the petitioners to make out a case for assailing the PMLA proceedings, the edifice of which is the action o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2011 issued under Section 5 (1) of the PMLA relating to ECIR No. 02/GWZO/PMLA/2014 dated 07.07.2014 and also against the original complaint No. OC 1591/2021. In this petition, while the petitioner nos. 1 and 2 are the CMJ University and the CMJ Foundation, the rest of the petitioners are either officers of the petitioner nos. 1 and 2 or are connected to the same. 4. Before going to the issue which has arisen for determination, it would be convenient if the facts of the case are narrated in brief. The reference to the petitioner numbers would, however, be in the context of the second writ petition. 5. The petitioner no. 1-University came into being through a statute of the State of Meghalaya which was enacted in the year 2009 under the name, CMJ University Act, 2009 . It is the projected case of the petitioners that the Board of Trustees of the CMJ Foundation vide resolution dated 29.07.2009 had appointed the petitioner no. 3 as the Chancellor and accordingly, the approval of the Visitor who was the Governor of the State was sought for. However, there were certain delay and accordingly, a deemed provision was invoked and it is claimed that on 17.06.2010, the University came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings before the Hon ble Meghalaya High Court in WP(C) No. (SH)/106/2013 which was, however, dismissed vide judgment and order dated 16.05.2013 and against the said dismissal WA No. 16 (SH)/2013 was preferred which was also dismissed on 31.05.2013. The aforesaid judgment was challenged in the Hon ble Supreme Court by filing SLP (Civil) No. 19617/2013. 9. In the meantime, on 12.06.2013, the Visitor had recommended the State Government to consider dissolution of the University. Accordingly, the said order was brought to the notice of the Hon ble Supreme Court and an order was passed on 13.09.2013 disposing the SLP with a direction to the State Government to take appropriate action under Section 48 of the Act. 10. Pursuant to such direction of the Hon ble Supreme Court, the State Government had issued a show cause notice dated 12.11.2013 to the University which was replied on 25.11.2013. The same was followed by another show cause notice dated 24.01.2014. Thereafter, vide the order dated 31.03.2014, the University was dissolved with immediate effect. The said order was passed under Section 48 (2) and (3) of the Act. It has been alleged that no reasonable opportunity was affor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frozen accounts subject to depositing any funds withdrawn from the frozen accounts pursuant to the order of the High Court. 15. In the meantime, the State had issued a notice dated 21.07.2016 restricting the petitioners from getting new enrollment of students for the academic year 2016-2017. The said notice was, however, the subject matter of Cont. Cas(C)/19/2016. Thereafter, it is claimed that the State vide a subsequent notice dated 05.09.2016 had withdrawn the earlier notice. At the same time, the State of Meghalaya filed SLP (Crl.) No. 6395 of 2016 against the judgment of the learned Single Judge in Crl. Pet. No.32 of 2014, dated 12.08.2015 which, however, was dismissed vide order dated 26.10.2016. It is the case of the petitioners that in view of such dismissal, the proceeding under the PMLA could not have been initiated. 16. On 29.03.2017, a letter was issued by the CID Meghalaya to the Enforcement Directorate for attaching the bank accounts of the petitioners under the PMLA. Pursuant thereto, a provisional attachment order dated 25.04.2017 was passed in respect of the bank accounts of the petitioners in which, amount of Rs. 27.66 (approx) crores was attached as proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the meantime, the Hon ble Supreme Court vide order dated 13.08.2018 had transferred the writ appeal to this Court to be disposed of within a year and till such time, it was directed that the stay order will continue. 22. When the matter was listed before this Court on 28.09.2018, it was observed that the proceeding for provisional attachment under Section 5 (1) of the PMLA was already concluded and a next stage of the proceeding was under Section 8 of the PMLA before the adjudicating authority. 23. On 24.10.2018, the learned Addl. Sessions Judge allowed the Foundation to withdraw an amount of Rs. 15.10 crores by taking into consideration the letter issued by the Punjab National Bank with the stipulation that the same would be subject to final outcome of the revision petition. Subsequently, when the Cont. Pet. No. 4/2018 had come up for consideration, the Hon ble Supreme Court had passed an order dated 19.08.2019 by observing that the petitioners had deposited a sum of Rs. 15.10 crores, the trial court was directed to find out the exact amount withdrawn by the petitioners and thereafter the petitioners were directed to pay the balance amount. It has been alleged that despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerning a huge amount of Rs. 13.54 crores (approx). This was followed by registration of a fresh Original Complaint No. 1591 of 2021 under Section 5 (5) of the PMLA in which, show cause notices have been issued on 17.01.2022. The petitioners claim to have submitted detailed reply on 24.02.2022. 26. It is the action of initiation of the fresh proceeding under the PMLA by means of provisional attachment Order No. 1/2021 involving attachment of various bank accounts and immovable properties of the petitioners vide order dated 30.11.2021 which is the subject matter of the second writ petition. 27. I have heard Ms. VD Makhija, learned Senior Counsel assisted by Shri AP Singh and Shri J Singh, learned counsel for the petitioners whereas the respondents are represented by Shri RKD Choudhury, learned Dy. SGI. 28. Ms. Makhija, learned Senior Counsel for the petitioners has submitted that the entire proceeding is bad in law as the same is based on irrelevant factors and extraneous considerations. It is submitted that the same is also vitiated by bias and mala fide. It is submitted that from a reading of the facts and circumstances, it would be apparent that the preconditions requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceeding by submitting that when the cases in the predicate offence were stayed, the proceedings under the PMLA are required to be kept in abeyance. In this regard, reliance has been placed upon the case of Hon ble Karnataka High Court in WP(C)/19337/2022, decided of on 14.12.2022 (Ms. C Uma Reddy Vs. Directorate of Enforcement Ors.) In the said case, certain courses were suggested which include keeping in abeyance the provisional order, furnishing of adequate security and continuation of the interim order. It is pointed out that the Hon ble High Court of Meghalaya vide order dated 10.08.2022 has stayed the predicate offence. Reference is also made to the order dated 15.06.2022 of the learned Trial Court. 33. It is submitted that till date, no documents pertaining to degree has been seized and what has been seized are the provisional certificates. It is clarified that certificate of submission of thesis is not a degree and neither a provisional certificate is a degree. The learned Senior Counsel has, however, referred to the orders dated 19.11.2013 and 29.01.2014 of the Hon ble Allahabad High Court. 34. With regard to the campus of the University, it is submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the bank accounts be de-freezed. It is further prayed that the securities offered by the petitioners may be directed to be accepted. It may be mentioned that the petitioners have deposited Title Deeds of certain plots of land and also an Indemnity Bond. 40. Per contra, Shri RKD Choudhury, learned Deputy Solicitor General, Union of India has opposed the writ petition tooth and nail. He has submitted that apart from the aspect of incorrect projection of facts on behalf of the petitioners, even the interpretation made are not tenable and therefore, liable to be rejected. 41. Shri Deb Choudhury, learned Dy. SGI has submitted that under Section 4(2) of the CMJ University Act, the University was started. However, degrees were awarded from the first year itself. He submits that the records would reveal that 20,570 nos. of illegal degrees have been awarded by the petitioner University. In August, 2010 itself, Bachelors Degree were awarded even prior to functioning of the University. He submits that it was only on 17.06.2010 that the Governor had accorded sanction to the Act of 2010 and therefore, it was legally not possible for the University to function. 42. By referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x.) out of the amount of Rs. 27.66 crores attached by the E.D. it is submitted that the order dated 03.05.2017 of the learned CJM, Shillong was grossly misused. 46. With regard to the Hon ble Supreme Court s order, the petitioner Foundation had deposited an amount of Rs. 15.10 crores as FDs in the Bank between 09.03.2017 to 24.03.2017 which was in violation of the direction of the Hon ble Supreme Court that the amounts were to be deposited back to the same accounts from which they had withdrawn. However, all the accounts amounting to Rs. 15.10 crores were closed on 05.05.2017 and rather, the Foundation had taken loans to part finance the said FDs and the loan accounts were also closed on 05.05.2017 by closing the FDs. In this connection, the State had filed a contempt petition in the Hon ble Supreme Court as its orders were violated. The Hon ble Supreme Court vide order dated 19.08.2019 had disposed of the contempt petition by accepting that the petitioners had deposited an amount of Rs. 15.10 crores in the form of Fixed Deposit in the Punjab National Bank, Greater Kailash, New Delhi. Though the order of the Hon ble Supreme Court was to keep this amount frozen, the said amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 8 of the Act. He submits that due opportunity would be granted to the petitioners by issuance of show cause notices whereafter the parties would be heard. Further, Section 26 provides for an appeal. 52. The learned Dy. SGI has submitted that at each and every stage, the petitioners are attempting to circumvent the Court proceedings. He has raised the following specific points in this connection: (i) The Chancellor was self appointed without the approval of the Visitor of the University. (ii) The Endowment Account was opened and immediately closed to show compliance to the Act. It is submitted that a University cannot run without an endowment account. (iii) The petitioners had even misled the Hon ble Supreme Court by projecting that Fixed Deposits were created in the Punjab National Bank, New Delhi. (iv) The petitioners had adversely affected the career of numerous students all across the country by issuance of fake degrees and this fact is endorsed by the Hon ble Allahabad High Court. (v) Around 27000 degrees and diplomas have been issued by the University illegally. (vi) Whereas the University has started in the 2010, the degrees wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Meghalaya. He further submits that when the validity of the degrees are subject matters which are sub judice, it would be prejudicial to presume that everything are proceeds of crime. Additionally, he submits that the original Title Deeds of the 52 acres of land have already been placed on record, the value of which would be more than the entire amount involved. He has also referred to the Google map to contend that the campus of the petitioner University has indeed been constructed and the same being functional, interest of justice would require interference by this Court. He has also submitted that the requirement of approval of the Visitor cannot be construed to mean a prior approval. 58. The rival submissions made by the learned counsel for the parties have been duly considered and the materials placed before this Court have been carefully examined. 59. The relief which has been prayed for is for setting aside the provisional attachment order dated 25.04.2017 and for quashing the complaint lodged under Section 5 (5) of the Act. In the second writ petition, the prayer is for interfering with the provisional attachment order being PAO No. 1 of 2021 dated 30.11.2021 (wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority will, for the purpose of computing or determining the proper tax due from an assessee, require to know all the facts which help him in coming to the correct conclusion. From the primary facts in his possession, whether on disclosure by the assessee, or discovered by him on the basis of the facts disclosed, or otherwise the assessing authority has to draw inferences as regards certain other facts; and ultimately, from the primary facts and the further facts inferred from them, the authority has to draw the proper legal inferences, and ascertain on a correct interpretation of the taxing enactment, the proper tax leviable. Thus, when a question arises whether certain income received by an assessee is capital receipt, or revenue receipt, the assessing authority has to find out what primary facts have been proved, what other facts can be inferred from them, and taking all these together, to decide what the legal inference should be. 61. In the instant case, as mentioned above, an attempt has been made on behalf of the petitioners to submit that there were no materials which can form reasons to believe and in absence of such conditions precedent, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration the observation of a Committee constituted by the UGC which had given a report dated 01.08.2013. The said observations and recommendations have been extracted in the judgment which is also quoted hereinbelow: On receiving the Visitor's decision, the Chairman, UGC constituted a Committee Chaired by Prof. Mihir K. Chaudhari, Vice-Chancellor, Tezpur University, Tezpur and eight Members of imminence and repute to visit the University and make on the spot assessment of fulfilment of criteria in terms of programmes, faculty, infrastructural facilities, financial viability etc. The said Committee submitted its report dated 1.8.2013. The observations of the Committee as also its recommendations as contained in the report are produced below: Observation of the Committee (i) The University appears to have functioned from a hired building being shared with several commercial agencies. The inner part of the building is shabbily maintained. (ii) The security, fire safety, hygiene in the premises are practically absent. (iii) In view of the large number of students and faculty numbers as claimed by the University (which could not even be verified), the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted by CMJ University to UGC is enclosed for your perusal and further necessary action at your end. You are requested to take appropriate action against CMJ University as per the provisions of the University Act or any other law as the Hon'ble Govenor's Secretariat deems fit. You are also requested to take a decision about the validity of degrees already awarded by the CMJ University in the past keeping in view that only those degrees can be termed as valid for which courses were conducted by CMJ University in regular mode at its main campus and that too with the prior approval of Statutory Council(s) concerned, wherever required. Further, Ph.D. can be conducted by any University in regular mode at the main campus and as per the provisions contained in the UGC M.Phil/Ph.D. Regulations, 2009. Decision taken by the Secretariat may kindly be informed as the UGC is receiving lot of queries about CMJ University and validity of degrees already awarded by it. With regards Yours sincerely, (Akhilesh Gupta) 66. The Hon ble Allahabad High Court had made the further observation: The Visitor of the University has already taken a decision regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Physical Education. The appellants have no vested right to claim such an appointment and the writ Court while considering such a plea must, above all, be guided fry the grave danger in imposing on the whole body of students, teachers who dam to be recipients of degrees of a University which is under a serious cloud bath in regard to its credibility and integrity. The jurisdiction under Article 226 of the Constitution has to be guided by the need to render substantial justice and the claim of the appellants in this case was seriously outweighed by the public interest in ensuring that the students whom the appellants claim an entitlement to teach are not left in the lurch by persons who have obtained degrees ostensibly in pursuit of courses granted by such a University. 68. This Court is of the view that when the challenge to the action of the respondent authority in declaring the degrees awarded by the petitioner- University was negated, there may not remain much scope for the petitioners to make out a case for assailing the PMLA proceedings, the edifice of which is the action of grant of fake degrees by the petitioner-University. 69. At this stage, the submission made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the RTI reply is given by the petitioner- University whose entire action is under cloud and is rather, part of criminal cases with allegations of huge misappropriation of public money leading to registration of PMLA proceedings. Secondly, the Hon ble Allahabad High Court while being apprised of the judgment of the learned Single Judge of the Hon ble Meghalaya High Court dated 16.07.2015, the order of the Division Bench of the Hon ble Meghalaya High Court dated 06.05.2021 in WA/14/2017 which was preferred against the said judgment dated 16.07.2015 was suppressed. The said judgment has been annexed as Annexure-20 in the affidavit of the respondents filed on 20.02.2023 in WP(C)/2723/2022. It may be mentioned that the said writ appeal preferred by State of Meghalaya was allowed and the impugned judgment dated 16.07.2015 passed in WP(C)/177/2014 was set aside. This Court has also noticed that the earlier judgments of the Hon ble Allahabad High Court, namely, that by the learned Single Judge dated 19.11.2013 which was affirmed by the Hon ble Division Bench dated 29.01.2014 were not even placed before the learned Single Judge while considering the aforesaid WP(C)/37062/2014 institute ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
