Brief Facts:
The Petitioner has raised objections to the eviction notice issued by the Respondents under Section 8(4) of the Prevention of Money Laundering Act, 2022 (hereinafter referred to as “PMLA”).
Contentions of the Petitioner:
It is contended that contrary to what has been provided under Section 26 of PMLA i.e., appeal against notice within 45 days, the notice only provides for time of 10 days to vacate the subject property. The result would be that if notice is given effect then the remedy of appeal becomes infructuous which is why it is argued that the notice of eviction should be rendered ineffective and should come into force only after expiration of 10 days post the expiry of the limitation period of 45 days for filing the appeal.
Contentions of the Respondents:
It is contended that under Section 8(4) the owner/occupier can be evicted forthwith after confirmation of the order of attachment by the Adjudicating Authority. It is argued that as per the rules to the period provided for vacating the property is 10 days and any other interpretation would equate to rewriting the laws.
Observations of the Court:
The court observed that according to Section 5 of the Act provisional attachment of properties acquired from proceeds of crime for a period of 180 days is permissible if it is believed that the proceeds are likely to be concealed or transferred. Pursuant to the approval of the provisional attachment by the Adjudicating Authority, forthwith possession of the property is permitted.
After looking at Rule 5(2) of the Rules of 2013 it is noted that as per this a 10 days notice is given to the owner/occupier to vacate the said property and if he fails then eviction will be effected with the help of law enforcement authorities.
Having said that the court also observed that as per Section 8(3) the order of provisional attachment is made appealable within a period of 45 days. However, the party doesn't have to challenge the order on the last day of the limitation. The party is entitled to take steps as soon as there is an apprehension that an eviction order might be passed under Section 8(4). It is propounded that Section 8(4) is to be used only in exceptional circumstances and it should be treated as an exception and not the rule. However, this does not entail that the authority cannot take possession of the property in any case, it varies on a case-to-case basis.
The Court opined that when the statute is clear and unambiguous, then only literal interpretation shall be done irrespective of the consequences. It is only when the language is not clear that the Court uses interpretative tools to decipher the meaning. The court emphasized the separation of powers between the three organs and opined that the presumption should always be that the legislature has used each word in the provision for a purpose.
Findings of the Court:
The court noted that there is no contradiction or disharmony between Sections 8 and 26 of the PMLA. The intention of the legislature is clear as it used the word “forthwith” which means that there is no need to wait for the period of limitation to get over and hence possession can be taken post confirmation of provisional order. The rigor is relaxed as the rules provide for a 10-day notice period and therefore it is during these 10 days that the owner/occupier can file an appeal. Despite this period being sometimes not enough to file an appeal, the Court cannot substitute the period which is well enacted by the Legislature and the vires of which has already been upheld by the Hon’ble Supreme Court in an earlier case.
Therefore, in light of the above reasons the Court dismissed the petition.
Cause Title: Syed Akeel Shah v. Directorate of Enforcement and another
Bench: Hon’ble Mr. Justice Sanjeev Kumar, Judge
Decided on: October 18th, 2022
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