Attiquallah Nazki vs Directorate Of Enforcement And ...
2022 Latest Caselaw 1799 j&K/2

                                                         S. No. 17
                                                         Supplementary list 1
    IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                           WP(C) 2324/2022
                            CM 5825/2022

Attiquallah Nazki                                            ...Petitioner(s)

Through: Mr. Shahwar Gauhar

                                   Vs.

Directorate of Enforcement and Another                     ...Respondent(s)

Through: Ms. Rehana, Advocate vice,
         Mr. T.M. Shamsi, ASGI
CORAM:
 HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                ORDER

19.10.2022

In this petition the petitioner has called in question the eviction

proceedings initiated by the Directorate of Enforcement Sub Zonal Office,

Jammu, purportedly under Section 8(4) of the Prevention of Money

Laundering Act 2002 (the Act). The petitioner also seeks a direction to the

respondents not to interfere with the possession and enjoyment of the

property subject matter of the impugned eviction proceedings. Reliance is

placed by the petitioner on the recent judgment of the Supreme Court in

the case of Vijay Madan Lal Choudhary Versus Union of India, 2022 SCC

OnLine SC 929.

Mr. Shahwar Gauhar, learned counsel appearing for the petitioner

while arguing the matter restricted his relief only to the extent of

providing him reasonable opportunity to avail the remedy of appeal

provided under Section 26 of the Act before the Appellate Tribunal. It is

contented by Mr. Shahwar Gauhar, learned counsel appearing for the petitioner, that the order of attachment confirmed by the adjudicating

authority under the Act under Section 8(3) of the Act is appealable before

the Appellate Tribunal within a period of 45 days from the date on which

a copy of the order made by adjudicating authority/Director is received by

the person aggrieved. He argues that the impugned notice of eviction

dated 23rd September, 2022, gives the petitioner only 10 days time to

vacate the subject property, and in case the eviction proceedings initiated

by respondents are taken to logical end before the petitioner is in a

position to avail of the remedy of appeal, the appeal if preferred within

limitation would be rendered infructuous. He therefore, submits that with

a view to enable the petitioner to avail of the remedy of appeal within the

prescribed period of 45 days, the eviction proceedings may not be given

effect to. In support of his submissions, Mr. Shahwar Gauhar, learned

counsel for the petitioner, relies upon the judgments of Bombay High

Court, Delhi High Court, and a judgment passed by a coordinate bench of

this Court.

Having heard learned counsel for the parties and perused the

material on record, I am of the considered view that none of the High

Courts in their judgments has laid down a proposition of law that eviction

proceedings in terms of Section 8(4) of the Act must be initiated within 10

days after the expiry of period of 45 days prescribed for filing appeal

before the Appellate Authority against the order of attachment confirmed

by adjudicating authority. The Director Enforcement or any other Officer

authorized by him is entitled to take possession of the attached property

forthwith after the provisional order of attachment made under Sub

Section 1 of Section 5 has been confirmed by the adjudicating authority. As per the Rules framed under the Act, 10 day's time is required to be

given to the owner/occupier of the property to vacate the premises. It

would therefore not be correct to say that eviction proceedings can be

initiated and the possession of the attached property can only be taken 10

days after the expiry of the period of limitation provided for filing appeal

before the Appellate Tribunal. To construe the provisions in this manner

would be rewriting the provisions of Section 8 and the Rules framed

thereunder. However having regard to the circumstances pointed out by

the learned counsel for the petitioner, and the delayed service of the

attachment order confirmed by the adjudicating authority, I am of the

view that the interest of justice would be sub-served if the petitioner is

given a 20 days' time from today to prefer an appeal, and till then the

eviction proceedings initiated in terms of communication dated 23rd

September, 2022, be not given effect to.

Ordered accordingly.

The writ petition is disposed of as above.

(SANJEEV KUMAR) JUDGE

SRINAGAR 19.10.2022 Aadil