HC quashes communication of Director enforcement directing Revenue Authorities that revenue extracts belonging to Zahoor Ahmad Shah Watali and his family members may not be issued
JKUT (Jammu), June-22-2021-( JNF):- Justice Ali Mohammad Magrey quashed the communication, bearing F.No. ECIR/03/DLZO-II/2017/AD(AK)/ 17058(A) dated 18.03.2020, issued by respondent no.3 to respondent no.4, to the 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. In consequence thereof, if there is any application for issuance of revenue extracts pending or filed before respondent no.4 or before the concerned officials subordinate to him vis-a-vis such earlier properties of Mr. Zahoor Amad Shah watali as are not presently attached by the competent authority under Section 5 of the Act, respondent no.4 is directed to proceed therein in accordance with the law governing the subject.
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-a-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?
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.
Justice Ali Mohammad Magrey after hearing both the sides observed that it is not permissible for the designated officer of Directorate of Enforcement, acting under the provisions of Act, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-a-vis the properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment. The question of doing so by respondent no.3, who is neither the Director or an officer of the rank not below the rank of Deputy Director and authorised by the Director under sub-section (1) of Section 5 for the purpose, is even remote, impermissible and without jurisdiction. If the concerned competent authority prescribed in Section 5 of the Act had the requisite reason to believe, evidence and satisfaction of the kind and nature mandated by the provision of law, nothing prevented him from making the provisional order of attachment to preserve the properties for confiscation. Admittedly, nothing like that has been done, the only legal inference available is that there must have been a reason for the authority for not doing that, too; and that reason by itself which has prevented him from making such an order is the safeguard for the 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 the incompetent authority indirectly in violation of the law by the impugned communication.
Court is of the view and concludes that the impugned communication dated 18.03.2020 is not only antithetic to the essentials envisaged by the provision of law, but is also without jurisdiction, and, therefore, the communication in question is rendered wholly unwarranted and illegal. It, therefore, deserves to be quashed. The question involved is, accordingly, answered in negative.
Coming to the reliefs prayed for in the petition, the petitioner-Company, apart from seeking quashing of the impugned communication dated 18.03.2020 addressed by respondent no.3 to respondent no.4, has prayed for issuance of consequential mandamus to respondent no.4. Justice Magrey observed that the impugned communication dated 18.03.2020 is declared illegal and is quashed, the consequence thereof must follow. The advice and instructions sought by respondent no.4 vide his communication no.383/08/GN/19-20 dated 25.02.2020 in unnumbered para 4 thereof related to a period prior to filing of the Investigation Report/Complaint before the Court of law. It be reiterated here that ECIR no.ECIR/03/DLZO-II/2017 was recorded on 14.06.2017; the three provisional attachment orders, as stated by the respondents in their reply, were passed by the competent authority on 11.03.2019, 16.04.2019 and 31.07.2019; these orders were confirmed by the Adjudicating Officer on 20.08.2019, 09.10.2019 and 10.01.2020; the Tehsildar, Narabal, Budgam, sought instructions from Assistant Director, respondent no.3 vide communication dated 25.02.2020 when the case was, admittedly, under investigation; and the impugned communication is dated 18.03.2020. Obviously, it is a date falling earlier to the filing of the final report/complaint before the court of competent jurisdiction when the case was without doubt under investigation. It may be mentioned here that the final report/complaint by the Enforcement Directorate is stated to have been filed before the competent court of jurisdiction on 24.08.2020. So, once the final report/complaint has been filed by the Directorate of Enforcement and there being no other attachment order passed by the competent authority relating to any other properties, legally, there should be no impediment in the way of Tehsildar concerned in discharging his official functions in accordance with law in relation to the properties which are not covered by the attachment orders passed by the competent authority. Furthermore, now that the response of respondent no.3 to respondent no.4 in consequence of the aforesaid communication dated 25.02.2020, viz the impugned communication dated 18.03.2020, has been declared illegal and liable to be quashed, respondent no.4, is expected to understand what does this legally mean and legally he is bound to act in the matter in accordance with the provisions of the Land Revenue Act and the rules framed thereunder. JNF