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TMI Blog2024 (6) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have made further attachment of alleged proceeds in the hands of the appellant. In fact, with exchange of the property and that too under the decree of the Court, the area came to the appellant no more remain to be proceeds of crime otherwise it would be a case of double attachment going against the principles of law. The respondents have tried to divert the fact in reference to the alleged violation of FSI to justify the action of attachment. The arguments were made in ignorance of the fact that violation of alleged FSI is not subject matter of FIR and ECIR and it could not have been under the ECIR being not a schedule offence under the Act of 2002. The arguments in this regard shows an exercise not appropriate to the facts of the case and under the provisions of law. The position of facts could have been different if the appellants would have occupied the area taken by M.K. Mohammad and given to HazraMemon under the assignment without consideration and a decree. The attachment of the above area at 12 to 15 floors of Ceejay House cannot be considered to be appropriate and legal. As per Section 8(2), the Adjudicating Authority is required to record its finding that property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul Patel 13th,Floor, Ceejay House, Worli,Mumbai 87.55 4,65,18,204 4. 1302 Praful/Varsha Patel 13th,Floor, Ceejay House, Worli,Mumbai 876.58 32,09,17,691 5. 1402- 1502 Varsha/Praful Patel 14th 15thFloor, Ceejay House, Worli,Mumbai 1222.64 44,76.10,949 6. 1402- 1502 Varsha/Praful Patel 14th 15thFloor, Ceejay House, Worli,Mumbai 528 21,78,55,437 7. 1401- 1501 Millennium Developers Pvt. Ltd. (Unsold Area) 14th 15th Floor, Ceejay House, Worli, Mumbai 1083.714 30,79,85,147 Total 4788.374 179,87,75000 4. The perusal of the statement quoted above would reveal attachment of the area of 12 to 15 Floors of Ceejay House, Worli, Mumbai. The reason for attachment given by the respondents is that Hazra Iqbal Memon was wife of Iqbal Mohammad Memon and had two sons Asif Iqbal Memon and Junaid Iqbal Memon. They were declared to be fugitive economic offenders under Section 12 of the Fugitive Economic Offenders Act, 2018. The appellant purchased the property from the wife of Iqbal Mirchi and, therefore, the order for attachment was passed ignoring the relevant fact as to how the property came to the appellants. 5. The learned counsel submitted that the appellant family had purchased a property known a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of Plot F belonging to the appellant. It is quite surprising that the respondents not only attached the area of 14000 sq. ft. received by HazraMemon in lieu of the part of Plot F but even attached the property of the appellant. On the attachment of 14000 sq. ft. area of HazraMemon and also the properties in question, it became a case of double attachment, per se illegal. 11. The property of HazraMemonfor an area of 14000 Sq. Ft. was provisionally attached and on a challenge before the Tribunal, the order of Adjudicating Authority was upheld by its order dated 28.05.2019. A challenge to the order is pending consideration before the High Court in Writ Petition No.6639/2021. 12. The learned counsel for the appellants further made a reference to the order of the Apex Court dated 21.09.2007 where a direction was given to the Government to remove all restrictions attached to the passport of HazraMemon though the appellant is not much concerned about it. However, the reference of the aforesaid has been given because at the time of attachment of the property, all these facts were ignored by the respondents. 13. It was also in ignorance of the fact that transaction with HazraMemon wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 1999. The developer was required to handover 57000 sq.ft. of the carpet area to the tenants and the owners and accordingly developer was entitled to use the FSI from the main plot area as well as the area under adverse possession of M.K. Mohammad. 17. The appellant Praful Patel entered into an agreement with HazraMemon in the year 2004 to take over the area of land admeasuring 19628.31 sq. ft. on which temporary structure of 5700 sq. ft. was erected. It was under the Court decree and was in lieu of 14000 sq. ft. built up area in the redeveloped building known as Ceejay House. To simplify the aforesaid, it is submitted that in lieu of the area of 19628.31 sq. ft. along with temporary structure of 5700 sq. ft.came to M.K. Mohammad under the decree of adverse possession and was later on acquired by HazraMemon out of the proceeds of crime of Iqbal Mirchi, was taken over by the appellant Praful Patel on consideration. The allegation is, however, made that the appellants have supported Iqbal Mirchi against whom number of cases were registered and was a fugitive offender without any material thereby the allegations remain for the sake of it. The respondents, however, took note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zraMemon to occupy the area which was acquired by her out of the proceeds of crime. Thus, if the appellant has taken over the property acquired by the proceeds of crime, it was rightly subjected to attachment independent to the area of 14000 sq. ft. belonging to HazraMemon. The counsel for the respondents thus prayed for dismissal of the appeal. It is more so when the appellants raised construction of the building on the land in question by violating FSI norms and thereby raised extra construction than permissible. For the aforesaid reason also, the building of 12 to 15 floors has rightly been attached as value thereof. The prayer was accordingly made to dismiss the appeals. 21. We have considered the rival submissions made by the counsel for the parties and scanned the matter carefully. 22. The facts relevant to the case have been given while narrating the arguments of the counsel for the appellants. However, a summary of few facts is given hereunder. 23. It is admitted that an FIR was registered against Iqbal Mohammad Memon alias Iqbal Mirchi on 24.02.1994 by DCB, CID, Mumbai for the offences under Section 302,307 and 34 IPC read with Section 3/25 of the Arms Act. It is also a fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on 01.04.1974, the said Plot F vested absolutely in favour of one Ramanbhai J. Patel and twelve others as co-owners and as tenants in common thereby each person became absolute owner of his or her share in the said Plot F with exclusion of other persons. It ultimately came to the legal heirs to Mr. PrafulManoharbhai Patel as one of the successor and legal heir. A multi-storeyed building known as Shreeniketan was existing on it which was later on demolished and now exists a Ceejay House. 26. On the part of Plot F, a dispute arose amongst ShantabenManoharbhai Patel and others, as a result of which a Suit No. 120/1978 was filed before the Bombay High Court for partition amongst the co-owners of the said property i.e. Shreeniketan. By an order dated 13.02.1978 passed by the Bombay High Court, the Court Receiver was appointed and subsequently a Consent Decree was passed on 24.07.1978 to confirm the earlier order dated 13.02.1978. The Court Receiver took charge and possession of the said building. 27. The building Shreeniketan became old and dilapidated thus required extensive repair. By the Consent Order dated 12.03.1999, M/s Millennium Developer Pvt. Ltd. agreed and undertook repairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The arguments were made in ignorance of the fact that violation of alleged FSI is not subject matter of FIR and ECIR and it could not have been under the ECIR being not a schedule offence under the Act of 2002. The arguments in this regard shows an exercise not appropriate to the facts of the case and under the provisions of law. The position of facts could have been different if the appellants would have occupied the area taken by M.K. Mohammad and given to HazraMemon under the assignment without consideration and a decree. It could have been subject matter of attachment but in the instant case they passed on the consideration and there exists a court decree. In view of the above, attachment of the above area at 12 to 15 floors of Ceejay House cannot be considered to be appropriate and legal. The Adjudicating Authority was required to look into Section 8(2) of the Act of 2002 which is quoted hereunder: 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 authorised by him in this behalf; and (c) taking into account all relevant materials pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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