Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 465 (JK)

Nabla Begum v. Union of India & Ors.

2012-07-27

HASNAIN MASSODI, M.M.KUMAR

body2012
1. Letters Patent Appeal on hand arise out of writ court judgment dated 03.04.2012 in OWP no. 1468/2011 titled Nabla Begum v. Union of India & Others, whereby, the writ court dismissed the writ petition throwing challenge to provisional attachment order no. 03/CHD/2011 dated 03.10.2011, issued by Joint Director, Enforcement, Government of India Chandigarh Zone. 2. The Joint Director, Enforcement, Government Of India, Chandigarh Zone, on 08.10.2011 passed a provisional attachment order No. 03/CHD/2011 under Section 5(1) of the Prevention of Money Laundering Act, 2002, whereby an amount to the extent of Rs. 1.00 lac, lying in account no. 0005020100000580 with J&K Bank, Branch Residency Road, Srinagar, held in the name of M/S Firdous Medical Agency, was provisionally attached for a period of 150 days from the date of the order. 3. The Enforcement Directorate tracked a money transaction from one Shri Javed Iqbal, residing in Italy to Sh. Yar Mohammad Khan, an activist of Tehreek-i-Huriyat through M/S Western Union Money Transfer and thereafter to Sh. Firdous Ahmad Shah, President, Democratic Political Movement. The transfer was suspected to be intended for subversive activities in the State. Order dated 03.10.2011 was followed by Corrigendum dated 25.10.2011, whereby, the immovable property in the name of the appellant- mother of Firdous Ahmad Shah, proprietor of M/S Firdous Medical Agency, mortgaged by Firdous Ahmad Shah with J&K Bank to avail cash credit facility, was attached in exercise of powers under Sub-Section (1) of Section 5 of Prevention Of Money Laundering Act (for short "Act") for a period of 150 days from the date of the order. 4. The appellant questioned provisional attachment order dated 08.10.2011 as also the corrigendum thereto dated 25.10.2011 in the writ petition registered as OWP No. 1468/11 on the grounds set out in the petition. 5. The writ court on going through the pleadings and upon hearing the learned counsel for the parties, held the appellant to have equally efficacious remedy available under Prevention of Money Laundering Act, 2002, to question the orders impugned in the writ petition and accordingly dismissed the writ petition. 6. The appellant aggrieved of the writ court order dated 03.04.2012 has come up with the instant Letters Patent Appeal. The appellant reiterated her stand as set out in the writ petition and insisted that the property attached vide corrigendum dated 25.10.2011, is her personal property acquired by her in the year 1975. 7. 6. The appellant aggrieved of the writ court order dated 03.04.2012 has come up with the instant Letters Patent Appeal. The appellant reiterated her stand as set out in the writ petition and insisted that the property attached vide corrigendum dated 25.10.2011, is her personal property acquired by her in the year 1975. 7. The attachment of the property made under the provisional attachment order no. No. 03/CHD/2011 dated 08.10.2011 and the corrigendum dated 25.10.2011 thereto is provisional or temporary in character and to stay in force for a period 150 days in terms of Sub-section (1) of Section 5 of Prevention of Money Laundering Act, 2002. The matter is to be referred to Adjudicating Authority. Either of the parties, not satisfied with the order made by Adjudicating Authority has a right in terms of the Section 26 of the Act to the file appeal before the Appellate Tribunal. The party aggrieved with the order of Appellate Tribunal has further remedy available in the form of appeal under Section 42 of the Act, to the High Court. The appellant without exhausting the remedy available under the Act, has rushed to invoke writ jurisdiction of the High Court under Article 226 of the Constitution of India. 8. It is well settled law that a party before opting for an extraordinary remedy available under Article 226, is required to exhaust the remedy available under frame work of the Act where under the impugned order has been made. There may be cases where though the Act provides the remedy, yet because of one or the other reason, such remedy is not efficacious or readily available. However, in the present case, the Act provides for a four tier remedy to the person aggrieved with any order passed under the Act. 9. It is pertinent to note that even where the immovable property is attached under Section 5 (1) of the Act, the person in occupation of such property is not to be prevented from making use of the said property. 10. The appellant has every right under the Act to appear before the Adjudicating Authority in terms of section 8 of the Act to convince the authority that the property provisionally attached does not represent fruits of a crime and is not liable to be attached under the Act. 10. The appellant has every right under the Act to appear before the Adjudicating Authority in terms of section 8 of the Act to convince the authority that the property provisionally attached does not represent fruits of a crime and is not liable to be attached under the Act. Even, in case, the Adjudicating Authority does not agree with the stand taken, the appellant has a right to file an appeal before the Appellate Authority. Dismissal of appeal cannot stand in her way to throw challenge to the order of Appellate Tribunal in an appeal before the High Court. 11. The writ court in the circumstances, was right in observing that the appellant ought to have exhausted the remedy available under the Act and that the writ petition in the said back ground was not maintainable. 12. We, against the above backdrop, do not find any reason to interfere with the writ court judgment. Letters Patent Appeal is, accordingly, dismissed.