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TMI Blog2025 (4) TMI 1542X X X X Extracts X X X X X X X X Extracts X X X X ..... recount of the case run in the writ petition: 2. One Mr. Firoj Hossain (the petitioner's husband) was a Director of M/s. Bharat Krishi Samridhi Industries Limited (hereafter "the said company"). A complaint had been lodged against the said company by one Sk. Mohammad Aziz in Arambagh Police Station alleging that the said company had induced the complainant to become it's agent and that the complainant had while working as such agent collected a sum of Rs. 1,00,000/- (Rupees One Lakh) from local people and deposited the same in the said company giving such people (from whom money had been collected) to understand that they would get in return from the company double the amount deposited. It was also alleged in the said complaint that the said company had cheated the complainant and the depositors and had misappropriated the invested amount. On the basis of such complaint Arambagh Police Station Case No. 243/2013 dated April 20, 2013 was registered against the said company under Sections 420 and 406 of the Indian Penal Code, 1860. 3. Subsequently the Central Bureau of Investigation (hereafter "CBI"), EO-IV, Kolkata took over the investigation in the said Arambagh Police Station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, filed a separate appeal under Section 26 of the PMLA along with an application seeking stay of the order dated August 22, 2022 passed by the adjudicating authority. 14. During pendency of the said appeal as well as the application seeking stay of the order dated August 22, 2022 passed by the Adjudicating Authority, the petitioner was served with a notice issued under Section 8 (4) of the PMLA as well as Rule 5 (2) of the Rules. 15. Feeling aggrieved by the aforesaid notice of eviction, the petitioner has approached this Court by filing the present application under Article 226 of the Constitution of India. Submissions of the petitioner 16. Mr. Apalak Basu, learned Advocate appearing for the petitioner submitted that the impugned notice dated November 19, 2024 is wholly without jurisdiction. 17. Inviting the attention of this Court to the observations of the Hon'ble Supreme Court in paragraphs 179, 180 and 181 in the case of Vijay Madanlal Choudhary and Others v. Union of India and Others (2023) 12 SCC 1, it was submitted by Mr. Basu that a notice issued under Rule 5 (2) of the Rules for taking possession under Section 8 (4) of the PMLA could not have been issued b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty rights in utter violation of the guarantee given by the provisions of Article 300A of the Constitution of India. It was submitted that such constitutional right could not be curtailed without following the due process of law. Submissions of the respondent 24. Mr. Vipul Kundalia, learned Senior Advocate appearing for the respondents submitted that the instant writ petition was not fit to be entertained. He contended that as the petitioner had already approached the Appellate Tribunal by filing an appeal under Section 26 (1) of the PMLA along with an application for stay of the order confirming the provisional attachment passed by the adjudicating authority and as the same were pending adjudication before the said Tribunal, there could be no reason for this Court to intervene at this stage. It was asserted that since the statutory appellate forum was already in seisin of the matter, it would not be proper for this Court to exercise discretion in favour of the writ petitioner by entertaining the petition under the highly prerogative writ jurisdiction of this Court. 25. As regards the submission that the notice did not show as to whether or not there was any exceptional circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that issuance of such notice under Section 8 (4) of the PMLA is only an administrative or ministerial act and there is no provision of appeal for challenging such notice in the PMLA. It is submitted that in such view of the matter the instant writ petition can always be entertained by this Court and mere pendency of the appeal should not inhibit the writ petition. Decision of the Court 28. It is now doubtless that this Court's jurisdiction to entertain a writ petition under Article 226 of the Constitution of India against any action or order of any authority answering the definition of a "State" within the meaning of Article 12 of the Constitution of India remains uninhibited by any other remedy (whether by way of appeal or otherwise) that may be provided against such action or order in any given statute inasmuch writ jurisdiction of this Court under Article 226 of the Constitution of India forms part of the basic structure of the Constitution of India. However writ remedy under Article 226 of the Constitution of India being discretionary in nature, the High Court may be perfectly justified in refusing to exercise its powers under Article 226 of the Constitution of India i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. 34. Section 26 of the PMLA provides for an appeal against an order passed by the Adjudicating Authority. Although this Court has not been shown any provision whereby the Appellate Tribunal has been vested with power to pass an interim order in an appeal presented before it, yet having noticed the powers that have been granted to the said Tribunal by use of the expression "pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against", this Court is of the view that the Appellate Tribunal would have implied power to grant stay of the order impugned before it. This Court holds so on the authority of the law laid down by the Hon'ble Supreme Court in the case of ITO v. M.K. MOHD. KUNHI (1969) 71 ITR 815 where while considering a somewhat similar situation of absence of a provision expressly empowering the Income Tax Appellate Tribunal to grant interim order of stay in an appeal preferred before it, the Hon'ble Supreme Court held as follows: 6. ...................... The right of appeal is a substantive right and the questions of fact and law are at large and are open to review by the Appellate Tribunal. Indeed the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the said notice dated November 19, 2024, the petitioner is remediless and this Court should intervene under Article 226 of the Constitution of India. 37. As regards the submission of Mr. Basu that the impugned notice does not disclose the exceptional circumstances on the basis whereof the petitioner has been sought to be evicted, this Court is of the view that disclosure of such reason is not at all required in the notice to be issued under Rule 5 (2) of the Rules. Indeed in terms of the law laid down by the Hon'ble Supreme Court in the case of Vijay Madanlal1 (Supra), it would be imperative upon the respondent Enforcement Directorate Authorities to demonstrate that there is an exceptional situation justifying taking of possession of the relevant property in terms of section 8 (4) of the PMLA but the question as to whether there is any exceptional situation or not, being one of facts, would again fall within the domain of the Appellate Tribunal only. There is no reason for this Court to separately entertain a challenge to the notice of eviction when the same can be easily dealt with by the Appellate Tribunal in the pending appeal itself. This Court is ad idem with the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to transfer or create any interest in the property till further orders are passed. The purpose of such provision is clearly different from that of Rule 5 (2). While the former provision is aimed at avoiding/preventing encumbrance and transfer of title, the latter is aimed at securing possession thereof. Both are important but non compliance or belated compliance of one would not vitiate the lawful compliance with the other. 40. The point that the notice impugned has been issued after 2 years 9 months is also not appealing. The statute does not provide for a mandatory time limit for such notice to be issued. In such situation the length of time taken by the Respondents to issue the notice impugned cannot be taken advantage of by the petitioner in the facts of the present case. 41. The next point urged by Mr. Basu that the notice has been issued prior to the order of confiscation, would definitely stand in case the Respondents fail to demonstrate that exceptional situation exists justifying issuance of the said notice. The test laid down by the Hon'ble Supreme Court in the case of Vijay Madanlal1 (supra) would and must be satisfied but if it can be demonstrated that exceptional s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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