AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 807
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....ned order of attachment is received by the person aggrieved. This is so provided under Section 26 of the Act of 2002. The impugned eviction notice provides only ten days time to the petitioner to vacate the subject property, and in case the impugned eviction notice is given effect to before the petitioner is in a position to avail the remedy of appeal, the appeal under Section 26 of the Act of 2002, even if preferred within limitation, would be rendered otiose. 3. Mr. Salih Pirzada, learned counsel appearing for the petitioner, therefore, argues that with a view to enabling the petitioner to avail the remedy of appeal within the prescribed period of forty five (45) days, the eviction proceedings cannot be given effect to. In support of his submission Mr. Pirzada places strong reliance on the following judgments:- i) Arun Kumar Saha v. Union of India [WP(C) No.1207/2020 decided on 05.03.2020] passed by the Bombay High Court; ii) B. Kamalam v. Joint Director, Directorate of Enforcement and another [WP No.27451/2014 decided on 15.10.2014] passed by Madras High Court. 4. Per contra, Mr. T.M.Shamsi, learned Deputy Solicitor General of India, appearing for the res....
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....ty involved in money laundering, reads thus:- "5 Attachment of property involved in money-laundering. - (1) Where the Director, or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that- (a) any person is in possession of any proceeds of crime; (b) such person has been charged of having committed a scheduled offence; and (c) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding ^9 [one hundred and fifty days] from the date of the order, in the manner provided in the Second Schedule to the Income-tax Act, 1961 (43 of 1961) and the Director or the other officer so authorised by him, as the case may be, shall be deemed to be an officer under sub-rule (e) of rule 1 of that Schedule: ^10 [Provided that no such orde....
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....ow the rank of Deputy Director authorized by him may provisionally attach properties acquired by the proceeds of crime for a period not exceeding 180 days from the date of order provided such authority or officer has reasons to believe that any person is in possession of any proceeds of crime and such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime. 8. In terms of Section 8 of the Act of 2002 and after following the procedure prescribed therein, Adjudicating Authority may confirm the attachment of the property made under Sub Section (1) of Section 5 of the Act of 2002 or retention of property or record seized or frozen under Section 17 or 18 of the Act of 2002. Once the provisional attachment made under Section 5(1) is confirmed by the Adjudicating Authority, the authorized officer is entitled to forthwith take possession of the attached property in the manner prescribed under the Rules of 2013. 9. Before we proceed, it would be appropriate to set out section 8 of the Act of 2002 and Rule 5(2) of the Rules of 2013 herein below:- Sec....
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....fect, whereupon such attachment or retention or freezing of the seized or frozen property or record shall- (a) continue during investigation for a period not exceeding three hundred and sixty-five days or the pendency of the proceedings relating to any offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be; and (b) become final after an order of confiscation is passed under sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60 by the Special Court; Explanation.-For the purposes of computing the period of three hundred and sixty-five days under clause (a), the period during which the investigation is stayed by any court under any law for the time being in force shall be excluded. (4) Where the provisional order of attachment made under sub-section (1) of section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the possession of the property attached under section 5 or frozen under sub-section (1A) of sec....
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.... [Underlined by me] Rule 5(2) of the Rules of 2013 reads thus:- "5(2) Where the immovable property confirmed by the Adjudicating Authority is in the form of a land building, house, flat etc. and is occupied by the owner, the authorized officer shall issue a notice of eviction of ten days so as to prevent the person from enjoying such property and after issuing of such notice if the premises is not vacated within the stipulated time, such occupant shall be evicted and the possession shall be taken by seeking the assistance of the local Authorities in terms of Section 54 of the Act; .........." 10. From a conjoint reading of Section 8 of the Act of 2002 and Rule 5(2) of the Rules of 2013, it clearly comes out that in terms of Section 8(4) of the Act of 2002, authorized officer is empowered to forthwith take possession of the property attached under Section 5 of the Act of 2002 but before doing so, he is enjoined by Rule 5(2) of the Rules of 2013 to give ten days notice to the owner/occupier of the attached property to vacate it. It is, thus, beyond any pale of doubt that the moment the provisional order of attachment of the property made under Section 5(1) is c....
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.... is now trite law that Sub Section 4 of Section 8 providing for taking possession of the attached property ought to be invoked only in exceptional situation keeping in view the special circumstances of the case. Mere confirmation of the provisional attachment order by the Adjudicating Authority is not enough for the authorized officer to invoke Section 8(4) and take over the possession of the attached property irrespective of the facts and circumstances of the case. The Supreme Court while repelling challenge to the vires of Sub Section (4) of Section 8 of the Act of 2002 in paragraph Nos. 304 and 305 held thus:- "304. The other grievance of the petitioners is in reference to the stipulation in sub-section (4) of Section 8 providing for taking possession of the property. This provision ought to be invoked only in exceptional situation keeping in mind the peculiar facts of the case. In that, merely because the provisional attachment order passed under Section 5(1) is confirmed, it does not follow that the property stands confiscated; and until an order of confiscation is formally passed, there is no reason to hasten the process of taking possession of such property. The pri....
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.... a rule. The vires of Section 8 of the Act of 2002 have been upheld. In the face of clear exposition of law by the Supreme Court in the case of Vijay Madanlal Choudhary (supra), there is hardly any scope for the argument that Section 8(4) cannot be resorted to even in appropriate case without first waiting for the expiry of limitation provided for filing appeal under Section 26 of the Act of 2002. The contrary judgment relied upon by the learned counsel for the petition rendered by Madras High Court in the case of B. Kamalam (supra) does not take into consideration the relevant provisions of the Act of 2002 discussed herein above. As a matter of fact, B. Kamalam has been decided without there being a proper debate on the issue. Therefore, this Court is not in a position to borrow the view taken by Madras High Court and, therefore, respectfully beg to differ. What is stated in B.Kamalam in paragraph-4 of the judgment reads thus:- "4. The petitioner has even taken a demand draft on 10.10.2014 for a sum of Rs.10,000/- in favour of the Registrar, Appellate Tribunal for moving an appeal. The time limit for filing an appeal has not so far expired. What is provided by Section 26(....
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....is the duty of the legislature to enact laws, the executive is enjoined to enforce these laws. Judiciary comes in where interpretation and understanding of the laws enacted by the legislature is called for. The doctrine of "separation of power" put an obligation on each one of the three organs to work within their defined sphere and try not to encroach upon each other's field. Judiciary ought not to venture into in the interpretative process, which has the effect of legislating on a subject matter. Need of the society for a particular law and the provision which such law should contain is best left to the wisdom of the legislature. In any case, legislature of the Country represents the will of the people and which will of the people is reflected in the legislations, those are made by the legislature for the welfare of the people and ensuring orderly society. 16. In the instant case, I do not find any absurdity or incongruity between Section 8 and Section 26 of the Act of 2002. Section 8(4) of the Act of 2002 clearly provides that the authorized officer can forthwith take over possession of the attached property once the order of provisional attachment is confirmed by the Adjudic....
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....articularly, when the Supreme Court has already upheld the vires of Section 8(4) of the Act of 2002 and has not found fault with any of the provisions of the Act of 2002 and the Rules framed thereunder. 18. By accepting the plea of the petitioner on the basis of the observations made by Madras High Court in B. Kamalam (supra), this Court would be rewriting the Statute by substituting "ten days" by "forty five days" plus ten days for taking over the possession of the attached property, which, I am afraid, is not the province of the Constitutional Court. Entering into such process of statutory interpretation, when language of the Statute is clear, unambiguous and admits of only one meaning, would be tantamount to legislation and encroachment upon the sphere, which the constitution as earmarked for the legislature. 19. In the view, which I have taken herein, I am supported by various judgments of the Supreme Court. However, suffice it to refer to couple of judgments, which are relevant for the present discussion. The Supreme Court in paragraph No.8 of the judgment in the case of Pritipal Singh Bedi v. Union of India, (1982) 3 SCC 140 has held as under:- "8.The dominant ....
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....ttled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. and others vs. Vijay Anand Maharaj : AIR 1963 SC 946 ; Rananjaya Singh vs. Baijnath Singh and others : AIR 1954 SC 749 ; Kanai Lal Sur vs. Paramnidhi Sadhukhan : AIR 1957 SC 907; Nyadar Singh vs. Union of India and others : AIR 1988 SC 1979 ; J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of U.P. : AIR 1961 S.C. 1170 and Ghanshyam Das vs. Regional Assistant Commissioner, Sales Tax : AIR 1964 S.C. 766). 15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity. 16. In Nasiruddin and others vs. Sita Ram Agarwal : (2003) 2 SCC 577 this Court stated the law in the following terms :- "37. The court's jurisdiction to interpret a st....
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.... The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise Kanai Lal Sur v. Paramnidhi Sadhukhan: 1958 SCR 360. 13. The other important rule of interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do so. The Court cannot add words to a statute or read words which are not therein it. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission. Union of India v. Deoki Nandan Aggarwal: 1992 Supp (1) SCC 323, Shyam Kishori Devi v. Patna Municipal Corporation: IR 1966....