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2022 DIGILAW 132 (AP)

HRT Builders v. State of Andhra Pradesh, Rep. by it’s Principal Secretary, Home Department, Secretariat

2022-02-01

M.SATYANARAYANA MURTHY, PRASHANT KUMAR MISHRA

body2022
JUDGMENT : M. Satyanarayana Murthy, J. 1. This appeal under Clause 15 of Letters Patent is filed challenging the order dated 28.04.2020 passed in W.P.No.11176 of 2019 by the learned single Judge, whereby the petition filed by the petitioner for issue of Writ of Mandamus declaring Ad-interim orders issued by respondent No.1 vide G.O.Ms.No.21 Home (General.A) Department dated 28.01.2019 to the extent of attaching the properties belonging to the petitioner at Sl.No.4 and 5 of Annexure to the impugned G.O. as illegal, arbitrary, unjust, without jurisdiction, contrary to provisions of the Andhra Pradesh Protection of Depositories of Financial Establishments Act, 1999 and violative of principles of Natural Justice, besides being violative of Article 21 and 300A of Constitution of India and set aside the same, was dismissed holding that the petitioner is entitled to avail effective, efficacious alternative remedy available before the Special Court, which is competent to take evidence and deal with the objections. 2. The parties to the appeal will hereinafter be referred as arrayed before the learned single Judge for the sake of convenience and to avoid confusion. 3. The claim of the petitioner is that item Nos.4 and 5 of G.O.Ms.No.21 dated 28.01.2019 was purchased by the petitioner under registered sale deeds bearing Nos.459 of 2014 and 460 of 2014 dated 20.01.2014 from the vendor company – Agri Gold. Since then the petitioner claims to be in possession and enjoyment of the property. The petitioner after securing necessary statutory approvals has commenced the construction of residential apartment complexes called “HRT Sanjana” and “HRT Manasvi”. One flat in HRT Manasvi, in the second floor, was sold to third party on 23.07.2018. Later, when the petitioner attempted to sell another property viz., a flat in first floor of the HRT Manasvi, the Sub-Registrar did not permit the registration. On enquiry, the petitioner came to know that the property could not be registered as the State already issued G.O.Ms.No.21 dated 28.01.2019, attaching the immovable property under Section 3 of “the Andhra Pradesh Protection of Depositories of Financial Establishments Act, 1999” (for short “Act 17 of 1999”) attaching the immovable property of the vendor’s company, which sold the property to the petitioner under two registered sale deeds mentioned above. The said company is accused of many crimes throughout the States of Andhra Pradesh and Telangana more particularly, defrauding hundreds of small depositors. The said company is accused of many crimes throughout the States of Andhra Pradesh and Telangana more particularly, defrauding hundreds of small depositors. Since the petitioner purchased property on 20.01.2014 i.e. much prior to registration of FIR against the vendor of the petitioner, the property is not liable for attachment and as the property is already alienated, Section 3 of the Act No.17 of 1999 has no application and to invoke Section 8 of the Act No.17 of 1999, the respondents have to follow certain procedure, but without following procedure under Section 8 of the Act No.17 of 1999, ad interim attachment was effected against the property of the petitioner, which are item Nos.4 and 5 of G.O.Ms.No.21 dated 28.01.2019 and to declare the same as void, illegal, arbitrary and Article 21 and 300-A of the Constitution of India. 4. The respondents did not file counter. 5. Upon hearing argument of learned counsel for the petitioner and learned Advocate General representing State, learned single Judge passed the order under challenge. 6. Sri Challa Gunaranjan, learned counsel for the petitioner, mainly concentrated on two issues. First issue is that, since the property was already sold prior to registration of crime against the vendor of the petitioner, Section 3 of the Act No.17 of 1999 cannot be invoked, at the same time even to attach the property of the third parties believed to be the property of Agri Gold, the accused, certain procedure is prescribed which is required to be followed while passing order of attachment. But, no such procedure was followed. Therefore, interim attachment under Section 3 of the Act No.17 of 1999 attaching the property of the petitioner would not attract either Section 3 or 8 of the Act No.17 of 1999, but the learned single Judge did not consider the distinction between Section 3 and 8 for interim attachment of property exercising power under Section 3 by the Crime Investigation Department and dismissed the petition erroneously on the ground that efficacious, alternative remedy is available under Section 7 of the Act No.17 of 1999, consequently requested to set aside the impugned order and declare G.O.Ms.No.21 dated 28.01.2019 to the extent of property of the petitioner as illegal, arbitrary and violative of Article 21 and 300-A of the Constitution of India. 7. 7. Learned Special Government Pleader appearing on behalf of learned Additional Advocate General supported the order, more particularly on the ground that when the effective, efficacious and alternative remedy is available before the competent Special Court, which can conduct necessary enquiry including recording of evidence, more particularly about the disputed question of fact, this Court would not, normally, entertain writ petition to exercise extraordinary discretionary power of judicial review, requested to dismiss the appeal confirming the order passed by the learned single Judge. 8. It is an admitted fact that the property purchased by the petitioner under registered document Nos.459 and 460 of 2014 dated 20.01.2014 was shown as item No.4 and 5 of G.O.Ms.No.21 dated 28.01.2019 issued by the Government exercising power under Section 3 of the Act No.17 of 1999. It is not known whether any application is filed by the State to make the attachment absolute in exercise of power under Section 4 (1) of the Act No.17 of 1999. 9. It is an undisputed fact that the alleged property of the petitioner was attached by way of interim attachment under Section 3 of the Act No.17 of 1999 and the respondents might have filed an application under Section 4 of the Act No.17 of 1999 to make the interim attachment absolute. As per Section 6 (4) of the Act No.17 of 1999 the Special Court shall, on an application by the competent authority, pass such order or issue such direction as may be necessary for equitable distribution among the depositors of the money realised from out of the property attached. 10. Learned counsel for the petitioner made an attempt to demonstrate that Section 3 and 8 of the Act No.17 of 1999 have no application since the property belonging to the petitioner is not the property belonging to Agri Gold and it is not the case of the state that it attracts Section 8 of the Act No.17 of 1999. 11. The Andhra Pradesh Protection of Depositors of Financial Establishment Act, 1999, is a self contained Code, prescribed certain procedures and framed Rules thereunder. When such procedure is prescribed, the procedure laid down in the Act has to be scrupulously followed. On the other hand, arrangement of sections in the Act itself is clear as to the step by step procedure to be followed by the persons connected with those cases under the Act. 12. When such procedure is prescribed, the procedure laid down in the Act has to be scrupulously followed. On the other hand, arrangement of sections in the Act itself is clear as to the step by step procedure to be followed by the persons connected with those cases under the Act. 12. Section 3 of the Act deals with attachment of properties on default in respect of deposits:- Notwithstanding anything contained in any other law for the time in force— (1) Where, upon complaints received from a depositor or depositors, that any financial establishment defaulted or is likely to default in the return of deposits in cash or kind after maturity, or in any manner agreed upon; or (2) Where the Government have reason to believe that any financial establishment is acting in a manner prejudicial to the interests of the depositors with an intention to defraud the depositors; and if the Government is satisfied that such financial establishment is not likely to return the deposits in cash or kind after maturity, or in any manner agreed upon, the Government may, in order to protect the interests of the depositors of such financial establishment, pass an ad-interim order attaching the money or other property alleged to have been procured either in the name of the financial establishment or in the name of any other person from and out of the deposits collected by the financial establishment, or if it transpires that such money or other property is not available for attachment or not sufficient for repayment of the deposits, such other property of the said financial establishment, or the promoter, manager or member of the said financial establishment, as the Government may think fit, and transfer the control over the said money or property to the competent authority. 13. Here, in the present case, the property allegedly purchased by the petitioner under two documents i.e. document Nos.459 and 460 of 2014 dated 20.01.2014 was attached, since, Section 3 permits passing ad interim order attaching the property alleged to have been procured either in the name of the financial establishment or in the name of any other person from and out of the deposits collected by the financial establishment. The petitioner is third party and the G.O.Ms.No.21 dated 28.01.2019 did not state that the property was acquired with the money from and out of the deposits collected by the financial establishment. The petitioner is third party and the G.O.Ms.No.21 dated 28.01.2019 did not state that the property was acquired with the money from and out of the deposits collected by the financial establishment. In paragraph No.6 of G.O.Ms.No.21 Home (General.A) Department dated 28.01.2019 it is clear that the Crime Investigation Department, Andhra Pradesh has also reported that some more immovable properties located at Kondaveedu Village, Phirangipuram Mandal of Guntur District, Kedareeswaripet, Vijayawada City, Durgi and Obulesunipalli Villages of Durgi Mandal of Guntur District, Payakapuram, Satyanarayanapuram, Ayodhyanagar of Vijayawada City, Ambapuram of Vijayawada Rural are identified in the name of M/s Agri Gold Projects Pvt., Ltd., represented by its Vice- Chairman Avva Venkata Seshu Narayana Rao, M/s Agri Gold Farm Estates India Pvt. Ltd., represented by its Director Avva Venkata Seshu Narayana Rao; Avva Alivelu Mangatayaru, W/o Avva Venkata Rama Rao; Avva Sitarama Rao; Avva Venkata Sivarama Krishna Subba Rao and Avva Venkata Siva Ram; Avva Karunsree, W/o Avva Venkata Seshu Narayana Rao; Avva Sridevi, W/o Avva Udaya Bhaskara Rao; Avva Venkata Subramanneswara Sarma; Avva Satya Venkateswara Rao @ Kotamraju Satya Sairam @ Sairam; Adavikolanu Venu Gopala Rao; Avva Udaya Bhaskara Rao; Avva Madhavi Latha, W/o AHSV Prasad; Avva Hema Sundara Vara Prasad. The immovable property located at Film Nagar, Shaikpet Village, Hyderabad of Telangana State in the name of M/s Sanctuary Homes Pvt., Ltd., represented by its Director Avva Pushapa Latha, W/o Avva Sitarama Rao purchased in the year 2013 vide Doct.No.2936/2013 and later sold out the said property to one Thata Ravi of Yusufguda, Hyderabad after registration of the case. 14. Therefore, the respondents prima facie concluded that the properties are in the name of M/s. Agri Gold Farms Estates India Private Limited and M/s Agri Gold Projects Pvt. Ltd. represented by its Managing Directors. In fact, the property in the present case already registered in the name of the petitioner on 20.01.2014, whereas crime was registered in the year 2018. Therefore, by the date of registration of crime for committing default in payment of amount by the financial establishment, the property was already allegedly alienated, but whether the petitioner would fall within the definition of “other person” referred in Section 3 (ii) of the Act No.17 of 1999 is to be by the competent Special Court recording evidence, if necessary. 15. 15. Learned counsel for the petitioner also made an attempt to distinguish Sections 8 and 3 of the Act No.17 of 1999. Section 8 of the Act No.17 of 1999 permits attachment of property of certain transferees. According to the petitioner, the petitioner is a transferee of property referred to in Section 3 of the Act No.17 of 1999. But, certain other procedure is prescribed saving certain transactions took place in ‘good faith’ and for valuable consideration and for any of the property otherwise than in good faith and for valuable consideration, the Special Court may, by notice, require any transferee of such property, whether or not he received the property directly from the said final establishment, to appear on a date to be specified in the notice and show cause why so much of the transferee’s property as is equivalent to the value of the property transferred should not be attached. Thus, notice is required to be issued to attach the property of the transferee under Section 8 of the Act No.17 of 1999 before making the ad interim attachment absolute. These, two Section Nos.3 and 8 of the Act No.17 of 1999 have to be read conjointly. However, the question of purchase of property in ‘good faith’ for valuable consideration is a clear question of fact. While exercising jurisdiction under Article 226 of the Constitution of India, this Court cannot undertake process of conducting enquiry to find out whether the transfer is in “good faith” or not. 16. In any view of the matter, when special procedure is prescribed under the Act No.17 of 1999, the petitioner can invoke the jurisdiction of Special Court for redressal of his grievance. Instead of redressing his grievance by availing effective efficacious remedy, the petitioner approached this Court by filing writ petition under Article 226 of the Constitution of India, which will not undertake conduct of enquiry by recording evidence to decide the issue of fact. Therefore, learned single Judge rightly directed the petitioner to approach the Special Court by availing effective, efficacious statutory remedy. 17. It is settled law that when a statutory remedy is available, the Courts would not normally entertain writ petition. 18. Therefore, learned single Judge rightly directed the petitioner to approach the Special Court by availing effective, efficacious statutory remedy. 17. It is settled law that when a statutory remedy is available, the Courts would not normally entertain writ petition. 18. In “Genpact India Private Limited v. Deputy Commissioner of Income Tax and another, (2019) 311 CTR (SC) 737” the Division Bench of the Apex Court held that, when a statutory remedy is available under the statute, the Court would not normally entertain the writ petition against assessment order. The Apex Court finally concluded that, if the submission is accepted, every time the dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act. 19. In “Commissioner of Income Tax and others v. Chhabil Dass Agarwal, (2014) 1 SCC 603 ” the Apex Court held as follows : “Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 , Harbanslal Sahnia v. Indian Oil Corpn. Ltd, (2003) 2 SCC 107 and State of H.P. v. Gujarat Ambuja Cement Ltd, (2005) 6 SCC 499 ) 20. (See State of U.P. v. Mohd. Nooh, AIR 1958 SC 86 , Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 , Harbanslal Sahnia v. Indian Oil Corpn. Ltd, (2003) 2 SCC 107 and State of H.P. v. Gujarat Ambuja Cement Ltd, (2005) 6 SCC 499 ) 20. In view of the law declared by the Apex Court, when a statutory remedy is available, the Court may not normally entertain petition under Article 226 of the Constitution of India which is purely discretionary in nature. 21. Therefore, we find no error in dismissing the writ petition granting liberty to the petitioner to avail effective, efficacious and statutory remedy available under the Act No.17 of 1999. Consequently, the appeal is liable to be dismissed. 22. In the result, the writ appeal is dismissed confirming the order dated 28.04.2020 passed in W.P.No.11176 of 2019 by the learned single Judge. No costs. 23. The miscellaneous petitions pending, if any, shall also stand closed.