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IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR
ALI MOHAMMAD MAGREY, J.
Trison Farms and Construction Pvt. Ltd. - Appellant
Versus
UT of J&K & ors. - Respondent
WP(C) No.327 of 2020, CM No.1088 of 2020
Decided on : 22-06-2021
Constitution of India, 1950 - Articles 19(1)(g) and 300-A - Prevention of Money Laundering Act, 2002 - Section 5 -Indian Companies Act, 1956 - Money Laundering - Attachment of properties - Issue of Revenue Extracts -- Quashment of Communication - Whether it is permissible for Assistant Director, Directorate of Enforcement, acting under the provisions of Prevention of Money Laundering Act, 2002,to ask Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-à-vis certain properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment order already made by and confirmed by the competent authority.
Finding of the Court:
It is not permissible for designated officer of Directorate of Enforcement, acting under provisions of Act, to ask Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-a-vis properties which, admittedly, have not been attached under Section 5 of said Act and have, in fact, been left out of attachment - Question of doing so by respondent no.3, who is neither Director or an officer of rank not below rank of Deputy Director and authorised by Director under sub-section (1) of Section 5 for purpose, is even remote, impermissible and without jurisdiction - If concerned competent authority prescribed in Section 5 of Act had requisite reason to believe, evidence and satisfaction of kind and nature mandated by provision of law, nothing prevented him from making provisional order of attachment to preserve properties for confiscation. - Admittedly, nothing like that has been done, only legal inference available is that there must have been a reason for authority for not doing that, too; and that reason by itself which has prevented him from making such an order is safeguard for petitioner-Company against arbitrary action. - It becomes manifest that what could not be done by the competent authority directly in accordance with law has been sought to be done by incompetent authority indirectly in violation of law by impugned communication - Impugned communication, issued by respondent no.3 to respondent no.4, to extent in para 3 thereof it directs that revenue extracts of even those properties earlier belonging to Zahoor Ahmad Shah Watali and his family members may not be issued, is quashed.
Result: Writ Petition Allowed
JUDGMENT :
1. This writ petition raises a short but significant question of law, which is: whether it is permissible for the Assistant Director, Directorate of Enforcement, acting under the provisions of Prevention of Money Laundering Act, 2002, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-à-vis certain properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment order already made by and confirmed by the competent authority?
2. The facts and circumstances in the backdrop of which the above question arises may be, briefly, noted.
3. Trison Farms and Constructions Pvt. Ltd., (hereinafter, the petitioner-Company) is a Private Limited Company, incorporated on 07.09.1999 under the provisions of the Indian Companies Act, 1956, having its registered office at Baba Dharam Dass Complex Fakhr-i-Kashmir Bridge, Barbarshah, Srinagar. Sarwa Begum wife of Zahoor Ahmad Shah Watali, through whom the present writ petition has been filed, is one of its Directors. The petitioner-Company is stated to be engaged in real estate business, buying land, developing it, raising construction of residential colonies and residential apartments thereon and sale thereof. The Company’s present business project is stated to be going on at Sozeith, Tehsil Narbal, District Budgam.
4. In 2017, the Enforcement Directorate, respondent no.2, registered Enforcement Case Information Report, ECIR No.03/DLZO-II/2017/AD(AK) under the provisions of the Prevention of Money Laundering Act, 2002 (hereinafter, the Act) against Zahoor Ahmad Shah Watali, one of the Promoter Directors of the petitioner-Company.
5. Consequent to the registration of aforesaid ECIR and after seeking information from the concerned revenue authorities about the properties held by Zahoor Ahmad Shah Watali and his family, land measuring 24 Kanals, 11.2 Marlas comprised in different Survey Nos, valuing Rs. 6.189 Crores, situated at Sozeith, Goripora, Narbal, Budgam, of the accused in the aforesaid ECIR and his family members, namely, Sarwa Bano wife of Zahoor Ahmad Shah Watali, Yasir Gaffar Shah Watali son of Zahoor Ahmad Shah Watali and Yameen Zahoor Shah Watali son of Zahoor Ahmad Shah Watali, who also happen to be the Promoter-Directors of the petitioner-Company, was provisionally attached by respondent no.2 vide Provisional Attachment Order (PAO) no.04/2019 dated 16.04.2019 which was confirmed by the Adjudicating Authority (PMLA), New Delhi, vide order dated 09.10.2019. Subsequently, further land measuring 05 Kanals and 17.3 Marlas, comprised in different Survey Nos. valuing Rs.1,47,74,881/- situated at Sozeith, Goripora, Narbal, Budgam, belonging to the above three Promoter-Directors of the petitioner-Company was provisionally attached by respondent no.2 vide
Provisional Attachment Order (PAO) no.10/2019 dated 31.07.2019 which was confirmed by the Adjudicating Authority (PMLA), New Delhi vide order dated 10.01.2020. In this manner, a total of 30 Kanals and 8.5 Marlas of land situated at Sozeith, Goripora, Tehsil Narbal, District Budgam, Kashmir, stand attached.
6. Information about the provisional attachment of the aforesaid land belonging to Shri Zahoor Ahmad Shah Watali and his named family members under the provisions of the Act, and confirmation of the provisional attachment orders by the Adjudicating Authority was communicated by respondent no.3, Assistant Director, Enforcement Directorate, Zonal Office, Srinagar, to the Deputy Commissioner, Budgam, vide his communication nos. F. No.ECIR/03/DLZO-II/2017/AD(AK)/9802 dated 30.10.2019 and F. No.ECIR/03/DLZO-II/2017/AD(AK)/15020 dated 28.01.2020, wherein, in furtherance of taking possession of the attached properties, it was stated that notice was required to be issued to the Registrar having jurisdiction of the area not to transfer or create any interest in such properties until further orders. The notices in question were enclosed with the commun
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