IMPORTANT POINT : Attachment of property – The moment provisional order of attachment of property made under Section 5(1) of Prevention of Money Laundering Act, 2002 is confirmed by Adjudicating Authority after following prescribed procedure under Section 8 of Act of 2002, authorized officer is competent to take over possession of attached property.

JUDGMENT :

In this petition the petitioner has called in question the eviction notice dated 23rd September, 2022 [“the impugned notice”] issued by the Directorate of Enforcement, Sub Zonal Office, Jammu purportedly under Section 8(4) of the Prevention of Money Laundering Act, 2002[“ the Act of 2002”]. The petitioner also prays for a direction to the respondents not to interfere with the peaceful enjoyment of the property subject matter of the impugned eviction notice.

2. The impugned notice is assailed on the ground that the order of attachment of the subject property confirmed by the Adjudicating Authority under Section 8(3) of the Act of 2002 is appealable before the Appellate Tribunal within a period of forty five (45) days from the date on which a copy of the impugned order of attachment is received by the person aggrieved. This is so provided under Section 26 of the Act of 2002. The impugned eviction notice provides only ten days time to the petitioner to vacate the subject property, and in case the impugned eviction notice is given effect to before the petitioner is in a position to avail the remedy of appeal, the appeal under Section 26 of the Act of 2002, even if preferred within limitation, would be rendered otiose.

3. Mr. Salih Pirzada, learned counsel appearing for the petitioner, therefore, argues that with a view to enabling the petitioner to avail the remedy of appeal within the prescribed period of forty five (45) days, the eviction proceedings cannot be given effect to. In support of his submission Mr. Pirzada places strong reliance on the following judgments: –

(i) Arun Kumar Saha v. Union of India [WP(C) No.1207/2020 decided on 05.03.2020] passed by the Bombay High Court;

(ii) B. Kamalam v. Joint Director, Directorate of Enforcement and another [WP No.27451/2014 decided on 15.10.2014] passed by Madras High Court.

4. Per contra, Mr. T.M.Shamsi, learned Deputy Solicitor General of India, appearing for the respondents submits that Section 8(4) of the Act of 2002 clearly provides that owner/occupier of the attached property can be evicted forthwith after the order of attachment is confirmed by the Adjudicating Authority under Section 8(3) of the Act of 2002. Rule 5(2) of the Prevention of Money-laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013 [“the Rules of 2013”] provides ten days time to the owner/occupier of the attached property to vacate it and, therefore, it would not be correct to say that eviction proceedings can be initiated and the possession of the attached property can only be taken ten days after the expiry of the period of limitation provided for filing appeal against the order of confirmation of attachment passed by the Adjudicating Authority. He, therefore, argues that interpreting the provisions in the manner suggested by the learned counsel for the petitioner would be tantamount to rewriting the provisions of Section 8 of the Act and the Rules of 2013 framed thereunder. It is, thus, submitted by Mr. Shamsi that in the absence of any challenge to the vires of the provisions of the Act of 2002 and the Rules framed thereunder, the plea of the learned counsel for the petitioner that for fifty five (55) days i.e. 45 days prescribed for filing appeal under Section 26 and ten (10) days provided under Rule 5(2) of the Rules of 2013, no eviction proceedings can be initiated in terms of Section 8(4) of the Act of 2002 nor possession of the attached property can be taken over, cannot be accepted.

5. Having heard learned counsel for the parties and perused the material on record, a short question that arises for consideration can be stated as under: –

“Whether the Director or any other officer authorized by him in this behalf is entitled to take possession of the property attached under Section 5 or frozen under Sub Section 1-A of Section 17 after serving ten days notice under Rule 5(2) of the Rules of 2013 or should wait for ten days afte