TaxTMI 
TaxTMI 
2023 (8) TMI 1489
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.... Order dated 14.03.2023 passed by the Adjudicating Authority; (iii) Pending admission, hearing and final disposal of the present Special Civil. Application, stay the effect, operation and implementation of the Impugned Order Notice qua the Subject Land and the Petitioner, and all actions consequential to the Impugned Order, including the Complaint and Show Cause Notice, qua the Subject Land and the Petitioner; (iv) Grant ex-parte ad-interim relief in terms of prayer (iii) above; and (v) Pass any other orders that this Hon'ble Court deems fit in the interest of justice. 2. Brief facts leading to the adjudication of the present writ-application read thus :- 2.1 The writ-applicant herein, AM Mining India Private Limited ("AMMIPL") is a private company incorporated on 31.10.2019 under the provisions of Companies Act, 2013. The writ-applicant herein is a part of the Arcelor Mittal Nippon Steel Group, which has caused successful resolution of stressed assets, including the successful resolution and revival of the erstwhile Essar Steel India Limited. 2.2 The Respondent No. 2 is ABG Shipyard Limited, a company incorporated on 15 March 1985 under....
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.... of the Sale Consideration, the Agreement to Sell, provided the following payment schedule :- Particulars Time Period Amount .... .... .... Tranche 1 At the end of 7 months of being declared as successful bidder (i.e. August 25, 2022) INR 18,95,00,000,.00 (Rupees Eighteen Crores Ninety-Five Lakhs Only) Tranche 2 At the end of 8 months of being declared as successful bidder (i.e. September 25, 2022) INR 18,95,00,000,.00 (Rupees Eighteen Crores Ninety-Five Lakhs Only) Tranche 3 At the end of 9 months of being declared as successful bidder (i.e. October 25, 2022) INR 83,38,00,000.00 (Rupees Eighty Three Crores Thirty Eight Lakhs Only) 2.9 Accordingly, under UTR: HSBCR22022082517255864, the writ-applicant herein on 25.08.2022 remitted an amount of INR 18,95,00,000.00 (Rupees Eighteen Crores, Ninety-Five Lakhs only). 2.10 The writ-applicant herein was ready and willing to remit the balance amounts, in terms of the aforesaid payment schedule set out in the Agreement to Sell. The writ-applicant herein had, and continues to have, necessary wherewithal to make the balance payments. 2.11 Subsequent to the aforesaid proce....
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....Law Tribunal, Ahmedabad ("NCLT") on 1.8.2017 in CP(IB) No. 53/NCLT/AHM/2017. Since the CIRP of the Corporate Debtor remained unsuccessful, the Hon'ble NCLT initiated the liquidation proceedings on 25.4.2019. Pursuant to the order, Mr. Sundaresh Bhat was appointed as the liquidator. In furtherance of the advertisement for sale of assets of ABGSL issued by the Liquidator under the liquidation process, the petitioner submitted its bid for the subject land. Upon being adjudged as the successful bidder and making necessary payments, an agreement to sell was drawn on 21.3.2022. On 21.9.2022, by way of the impugned order, the subject land was provisionally attached under the PMLA, thereby enjoining the parties from completion of the sale process and causing handing over of the subject land to the petitioner, which came to be confirmed by the impugned order passed by the adjudicating authority dated 14.3.2023. 2.1 Mr. Sanjanwala, learned Senior Counsel vehemently submitted that the petitioner herein is a successful bidder, pursuant to the permission granted by the NCLT to the liquidator to sell the assets of ABG Shipyard by way of private sale by order dated 2.12.2020. Th....
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....orate of Enforcement. Mr. Sanjanwala, learned Senior Counsel appearing for the petitioner submitted on the merits of the matter. The contentions raised by Mr. Sanjanwala, the learned Senior Counsel, require consideration. 5. In view of the above, Issue Rule, returnable on 5.7.2023. Mr. Devang Vyas, learned ASG waives service of notice of Rule for and on behalf of respondent No. 1. Mr. Monaal Davawala, learned advocate waives service of notice of rule for respondent Nos. 2 and 3." 5. Heard Mr. R. S. Sanjanwala, the learned Senior Counsel assisted by Mr. Raheel Patel, the learned advocate appearing for Gandhi Law Associates, the learned advocate appearing for the writ-applicant, Mr. Kshitij Amin, the learned advocate appearing for the respondent No. 1 and Mr. S.N. Soparkar, the learned Senior Counsel assisted by Mr. Monaal Davawala, the learned advocate appearing for the respondent No. 2 and 3. Submissions on behalf of the writ-applicant herein :- 6 Mr. R. S. Sanjanwala, the learned Senior Counsel vehemently submitted that the final order dated 14.3.2023 passed by the respondent No. 1 is in teeth of Section 33(5) of the IBC. ....
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....e with ABG Shipyard (the Corporate Debtor). (e) Placing reliance on the aforesaid submissions Mr. Sanjanwala, the learned Senior Counsel submitted that the protection granted under Section 33(5) and 32A(2) of the IBC override the respondent No. 1 power to attach properties under Section 5 of the PMLA, since (i) Section 238 of the IBC provides that the provisions of IBC will override anything inconsistent with any other law in force and (iii) PMLA, despite containing a similar overriding provision under Section 71, is subservient to the provisions of IBC, since IBC was enacted after PMLA. It was submitted that when there is two enactments of non-obstante clauses (like the present one), the enactment which is subsequent in time overrides the other. Reliance was placed on the decision in the case of Bank of India vs. Ketan Parekh and Ors., reported in (2008) 8 SCC 148 to substantiate the aforesaid contention. (f) Mr. Sanjanwala, the learned Senior Counsel submitted that the writ-applicant herein is bonafide purchaser of the subject land and has no involvement into unlawful activities allegedly carried out by the ABG Shipyard. The writ-applicant herein is a succe....
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....and. The contents of paragraphs XXI and XXII neither contain any findings as to how the subject land is involved in money laundering nor how in exercise of powers under Section 8(3), the adjudicating authority has the authority to attach such assets. (i) Mr. Sanjanwala, the learned Senior Counsel placed reliance on the order passed in the Special Civil Application No. 19387 of 2022 dated 17.2.2023 in case of Welspun Steel Resources Pvt. Ltd., vs. Union of India, which set aside the provisional attachment of similarly placed assets, holding that the same could not have been attached in the first place under the PAO, not being the proceeds of crime. Despite the same having been brought to the notice of the adjudicating authority, no reference is made by the adjudicating authority while passing the final order dated 14.3.2023. (j) It was submitted that the adjudicating authority was bound by the order passed in the Special Civil Application No. 19387 of 2022 dated 17.2.2023 as referred above and in view thereof also the present petition is required to be allowed considering the fact that in an identical fact and situation with respect to Welspun Steel Resou....
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.... to avail the same in accordance with law. Reliance was placed on the ratio as laid down by the Hon'ble Apex Court in the case of (a) Kelkar & Kelkar Vs. Hotel Pride Executive Pvt Ltd., reported in MANU/SC/0580/2022 and AIR 2004 SC 1467. (b) Civil Appeal No. 5121 of 2021 arising out of SLP (C) No. 13639 of 2021 @ D No. 11555 of 2020 7.2 It was submitted that the same could not have been said to be final until the sale deed is executed between the parties. It was submitted that in the facts of the present case at the stage of agreement to sell in view thereof this Court may not interfere with the order impugned passed by the respondent authority. 7.3 Mr. Amin, the learned advocate submitted that the orders impugned passed by the respondent authorities are in due compliance of the Act and the reasons are recorded in accordance with the provisions of law. 7.4 It was submitted that on the complaint being lodged before the enforcement authority, investigation was carried out, forensic audit was also carried out and it was found that there was divergence in the fund and for the same, attachment was held to be necessary. 8. Heard Mr. S. N. Sopa....
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....een instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this sub-section having been fulfilled: Provided further that every person who was a "designated partner" as defined in clause (j) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or an "officer who is in default", as defined in clause (60) of section 2 of the Companies Act, 2013 (18 of 2013), or was in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor's liability has ceased under this sub-section. (2) No action shall be taken against the property of the corporate debtor in relation to an offence committed prior to the commencement of the....
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.... The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." 10. Sections 5 and 8 of the PMLA Act; "Section 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 the Director 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; and (b) 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 one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offen....
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....laint under sub-section (5) of section 5 , or applications made under sub-section (4) of section 17 or under sub- section (10) of section 18 , if the Adjudicating Authority has reason to believe that any person has committed an offence under Section 3 or is in possession of proceeds of crime , he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of section 5 , or, seized 15 "or frozen" under section 17 or section 18 , the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in money- laundering and confiscated by the Central Government: Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person: Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons hold....
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....ey-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government. (6) Where on conclusion of a trail under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. (7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under sub-section (3) of Section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offences of money-laundering after having regard to the material before it." 11. At this stage, it is also apposite to refer to the position of law as he....
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.... no authority to rule on the question which arises and touches upon the interplay between the provisions and powers conferred by the IBC and the corresponding power and authority which stands conferred upon the ED under the PMLA. Learned counsel for the petitioner also drew the attention of the Court to the conflicting views which had been rendered on the interplay between IBC and PMLA and referred to the decision in Directorate of Enforcement vs. Manoj Kumar Agarwal^13 which had held that the Enforcement Directorate would have no jurisdiction to interfere or interdict proceedings under the IBC once a moratorium came into effect. Learned counsel also invited the attention of the Court to the 2021 SCC OnLine NCLAT 121 Signature Not Verified Digitally Signed By:NEHA Signing Date:11.11.2022 15:55:22 Neutral Citation Number: 2022/DHC/004739 conflicting views which had been expressed in Varrsana Ispat Limited vs. Deputy Director of Enforcement^14 as well as Andhra Bank vs. Sterling Biotech Limited^15, Rotomac Global Private Limited vs. Deputy Director, Directorate of Enforcement^16 on the one hand and Manoj Kumar Agarwal on the other and contended that in light of the flux in the legal ....
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....ght necessitate such power to be resorted to. A person engaged in criminal activity intending to convert the proceeds of crime into assets that can be projected as legitimate (or untainted) would generally be in a hurry to render the same unavailable. The entire contours of the crime may not be known when it comes to light and the enforcement authority embarks upon a probe. The crime of such nature is generally executed in stealth and secrecy, multiple transactions (seemingly legitimate) creating a web lifting the veil whereof is not an easy task. The truth of the matter is expected to be uncovered by a detailed probe which may take long time to undertake and conclude. The total wrongful gain from the criminal activity cannot be computed till the investigation is completed. The authority for "provisional" attachment of suspect assets is to ensure that the same remain within the reach of the law. xxx xxx xxx 141. This court finds it difficult to accept the proposition that the jurisdiction conferred on the State by PMLA to confiscate the "proceeds of crime" concerns a property the value whereof is "debt" 2019 SCC OnLine Del 7854 Signature Not Verified Digitally Sig....
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....appear and show cause why the properties so attached under Section 5 be not declared to be properties involved in money laundering and confiscated by the Union Government. On a culmination of the aforesaid proceedings, the Adjudicating Authority would ultimately either pass an order of confirmation or is in case he differs with the conclusions arrived at by the Director and after considering any response that may be received, annul the provisional attachment. 107. The Court had while noticing the submissions addressed on behalf of the petitioner taken note of the contention that Section 238 of the IBC would confer primacy upon the said statute and thus it would override the provisions of the PMLA bearing in mind that it was a special statute and had come to be promulgated later in point of time. 114. On a consideration of the aforesaid, the Court comes to the conclusion that Section 32A would constitute the pivot by virtue of being the later act and thus govern the extent to which the non obstante clause enshrined in the IBC would operate and exclude the operation of the PMLA. As has been observed hereinabove, while both IBC and the PMLA are special statutes in th....
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.... 21.9.2022. The facts of the present case being identical to the facts of the said case, the relevant paragraphs of the said order passed in the Special Civil Application No. 19387 of 2022 dated 17.2.2023 read thus :- "6. Having considered the submissions made by the learned advocates for the respective parties, the legality of the order under challenge has to be addressed from the point of view whether the assets acquired by the petitioners can at all be said to be 'proceeds of crime'. This is not only in light of the manner and the method in which the specified assets have been acquired by the petitioners but also in light of the provisions of the IBC. From the chain of events narrated in the earlier part of this judgement what is evident is that ABG Shipyard Limited went into liquidation. Assets of the company 'corporate debtor' were offered for sale pursuant to an auction held under the directions of the Apex Court. The petitioners were successful bidders and had after depositing the entire sale consideration received sale certificates. Certainly can it not be said that the assets which are 'specified assets' which the petitioners have acquired are those assets wh....
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....xus with the object of the Code. The other part of the clarification, under the Explanation, is found in the second sub-clause of the Explanation 322. Under the second limb of the Explanation, the Law Giver has clearly articulated the point that as far as the property of any person, other than the corporate debtor or any person who had acquired the property of the corporate debtor through the CIRP or liquidation process under the Code and who otherwise fulfil the requirement under Section 32A, action can be taken against the property of such other person. 323. Thus, reading sub-Section (1) and sub-section(2) together, two results emerge: 323.1 Subject to the requirements embedded in sub- Section (1), the liability of the corporate, debtor for the offence committed under the CIRP, will cease. 323.2 The property of the corporate debtor is protected from any legal action again subject to the safeguards, which we have indicated. 323.3 The bar against action against the property, is available, not only to the corporate debtor but also to any person who acquires property of the corporate debtor under the CIRP or the liquidation process. The bar against....
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....e granted to the corporate debtor as also its property, it hardly furnishes a ground for this this Court to interfere. The provision is carefully thought out. It is not as if the wrongdoers are allowed to get away. They remain liable. The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate. We must also not overlook the principle that the impugned provision is part of an economic measure. The reverence courts justifiably hold such laws in cannot but be applicable in the instant case as well. The provision deals with reference to offences committed prior to the commencement of the CIRP. With the admission of the application the management of the corporate debtor passes into the hands of the Interim Resolution Professional and thereafter into the hands of the Resolution Professional subject undoubtedly to the control by the Committee of Creditors. As far as protection afforded to the property is concerned there is clearly a rationale behind it. Having regard to the object of the statute we hardly see any manifest arbitrariness in the provision." 6.4 There....
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....ntly pressed into service by the learned ASG Mr. Vyas, as discussed hereinabove, when the assumption of jurisdiction by the authorities itself is non-existent and the respondent proceeds on facts which have no nexus to the objects sought to be achieved, and the opinion is not based on any tangible material, 'reason to believe' is a jurisdictional fact and in absence of such 'reason to believe' arrived at by the authorities, the bar of alternative remedy cannot oust the jurisdiction of this court. 9. As far as section 8 of the PMLA is concerned, what is evident on reading the provision is that the onus shifts on the petitioners once the adjudicating authority decides to take action and therefore section 8 cannot be a ground on which the petitioner can be ousted from securing a relief in exercise of powers under Article 226 of the Constitution of India. 10. For the aforesaid reasons therefore, the petition is allowed. The order dated 21.09.2022 insofar as it attaches the specified assets of the petitioners as shown in para 12 of the impugned order in the schedule of properties at Sr. Nos. 13, 14, 15, 17, 18, 19 and 20 shall be treated as assets not falling with....
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....was adjudged the "Successful Bidder". Further, in accordance with proviso to Section 35(1)(f) of IBC, the writ-applicant herein submitted an affidavit to the Liquidator, declaring its eligibility in terms of Section 29A of IBC ("29A Affidavit"). The copy of the bid submitted and the affidavit submitted by the writ-applicant herein are duly produced at Annexure P-9 and Annexure P-10 respectively. A copy of the communication informing declaration of "Successful Bidder" is duly produced at Annexure P-11. (C) Pursuant to the aforesaid, an Agreement to Sell dated 21.03.2022 was executed between ABG Shipyard (through Shri Sundaresh Bhat in his capacity as the Liquidator) and the writ applicant herein for sale and purchase of the Subject Land, which was registered vide document No. 5867 on 21.03.2022 at Surat ("Agreement to Sell"). (D) At the time of execution of the Agreement to Sell, the writ-applicant herein had already remitted INR 68,22,00,000 (Rupees Sixty-Eight Crores and Twenty-Two Lakhs only) towards acquisition of the Subject Land. (E) Towards the balance of the Sale Consideration, the Agreement to Sell, provided the following payment schedule :- Particulars ....
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.... (iii) The writ-applicant herein is a bonafide purchaser of the subject land. (iv) There are no allegations in the complaint with respect to abatement or conspiracy qua the writ-applicant herein for commission of any offence with ABG Shipyard, the corporate debtor. (v) No steps have been taken by the respondent No. 1 for setting aside the process of sale before the adjudicating authority. In terms of Section 60 of the IBC, any challenge to process of sale in course of liquidation, must necessarily lie before the NCLT. Further in view of Section 63, the jurisdiction of civil court and all other authorities, to entertain any suit or proceeding as regards the same, stands ousted. 16. The respondent authority proceeded to attach the properties in question acquired by the writ-applicant herein after following due procedure under the IBC invoking the provisions of PMLA Act. 17. In the opinion of this Court, confirmation of attachment interdicts and interferes with the consummation of the sale process which is part of liquidation of ABG Shipyard. The aforesaid interjection by the respondent No. 1, in the opinion of this Court, is in teeth of the provis....
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....as referred above. No separate finding or independent adjudication has been undertaken by the adjudicating authority. Without considering the submissions advanced by the writ-applicant herein and the written submissions that were placed on record by the writ-applicant herein the adjudicating authority proceeded to pass final order and has also failed to take into consideration the order passed in the Special Civil Application No. 19387 of 2022 and proceeded to pass final order dated 14.3.2023 which reads thus :- "I have carefully considered the written replies filed by the Defendants to the notice to show cause under section 8(1). I have also considered the rejoinders filed by the Complainant to the written replies. The role of the Defendants with reference to property attached and its involvement in money laundering has also been brought on Para 3 page 24 to 27 of this order. I have also heard the Counsels for the Complainant and defendants. The written submissions subsequent to the final argument filed by the Defendants and the Complainant have been gone through. I have considered all the relevant materials placed on record before me. Considering the material in O.C....
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.... reasons, without any independent finding on "reason to believe" the order of provisional attachment under Section 5 of the PMLA has been confirmed. In the opinion of this Court, the order of provisional attachment dated 21.9.2022 came to be quashed by order passed in the Special Civil Application No. 19387 of 2022 dated 17.2.2023. In view thereof, the respondent authority has erred in not arriving at an independent finding considering the fact that the case of the writ-applicant stands at identical footing to that of the writ-applicant in the Special Civil Application No. 19387 of 2022. Though the order under Section 5 is quashed and set aside, the respondent authority has proceeded to confirm the order of provisional attachment passed under Section 5(1) which can be said to be an order passed without any application of mind. While passing the impugned order pursuant to the show cause notice wherein a detailed reply came to be filed by the petitioner and written submissions came to be filed after personal hearing for release of the subject land for attachment. The impugned order is passed by the adjudicating authority without considering the submissions advanced by th....
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....s rule must be observed in its proper spirit and mere presence of compliance with it would not satisfy the requirement of law. ..." 14. In the case of Mc Dermott International Inc. V/s. Burn Standard Co. Ltd. and Ors. (2006) SLT 345, the Supreme Court clarified the rationality behind providing of reasons and stated the principle as follows:- * ". . . Reason is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded. The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the Arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills' Arbitration in Re, `proper adequate reasons'. Such reasons shall not only be intelligible but shall be a reason connected with the case which the Court can see is proper. Contradictory reasons are equal to lack of reasons. . . ." 15. In Gurdial Singh Fijji V/s. State of Punjab [(1979) 2 SC....
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.... interim relief was rejected without stating any reasons in a writ petition challenging the order of the Labour Court noticed, that legality, propriety and correctness of the order was challenged on the ground that no reason was recorded by the learned Single Judge while rejecting the prayer and this has seriously prejudiced the interest of justice. After a detailed discussion on the subject, the Court held:- "The Supreme Court and different High Courts have taken the view that it is always desirable to record reasons in support of the Government actions whether administrative or quasi judicial. Even if the statutory rules do not impose an obligation upon the authorities still it is expected of the authorities concerned to act fairly and in consonance with basic rule of law. These concepts would require that any order, particularly, the order which can be subject matter of judicial review, is reasoned one. Even in the case of Chabungbambohal Singh V/s. Union of India and Ors. 1995 (Suppl) 2 SCC 83, the Court held as under: "His assessment was, however, recorded as "very good" whereas qua the appellant it had been stated unfit. As the appellant was being superseded....
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.... is expected of the High Court to pass a speaking order, may be briefly. Consistent with the view expressed by the Supreme Court in the afore-referred cases, in the case of State of U.P. V/s. Battan and Ors. [(2001) 10 SCC 607], the Supreme Court held as under: "The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order. The absence of reasons has rendered the High Court order not sustainable." Similar view was also taken by the Supreme Court in the case of Raj Kishore Jha V/s. State of Bihar and Ors. JT 2003 (Supp.2) SC 354. In a very recent judgment, the Supreme Court in the case of State of Orissa V/s. Dhaniram Luhar (2004) 5 SCC 568 while dealing with the criminal appeal, insisted that the reasons in support of the decision was a cardinal principle and the High Court should record its reasons while disposing of the matter. The Court he....
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....oning cannot be understood in legal parlance as absence of reasons. While no reasoning in support of judicial orders is impermissible, the brief reasoning would suffice to meet the ends of justice at least at the interlocutory stages and would render the remedy of appeal purposeful and meaningful. It is a settled canon of legal jurisprudence that the Courts are vested with discretionary powers but such powers are to be exercised judiciously, equitably and in consonance with the settled principles of law. Whether or not, such judicial discretion has been exercised in accordance with the accepted norms, can only be reflected by the reasons recorded in the order impugned before the higher Court. Often it is said that absence of reasoning may ipso facto indicate whimsical exercise of judicial discretion. Patricia Wald, Chief Justice of the D.C. Circuit Court of Appeals in the Article, Blackrobed Bureaucracy Or Collegiality Under Challenge, (42 MD.L. REV. 766, 782 (1983), observed as under:- "My own guiding principle is that virtually every appellate decision requires some statement of reasons. The discipline of writing even a few sentences or paragraphs explaining the basis fo....
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.... at Brisbane on September 13, 2002 in relation to Judgment Writing. Describing that some judgment could be complex, in distinction to routine judgments, where one requires deeper thoughts, and the other could be disposed of easily but in either cases, reasons they must have. While speaking about purpose of the judgment, he said, "The first matter to consider is the purpose of the judgment. To my mind there are four purposes for any judgment that is written: - (1) to clarify your own thoughts; (2) to explain your decision to the parties; (3) to communicate the reasons for the decision to the public; and (4) to provide reasons for an appeal Court to consider." Clarity of thought leads to proper reasoning and proper reasoning is the foundation of a just and fair decision. In Alexander Machinery (Dudley) Ltd. V/s. Crabtree 1974 ICR 120, the Court went to the extent of observing that "Failure to give reasons amounts to denial of justice". Reasons are really linchpin to administration of justice. They are link between the mind of the decision taker and the controversy in question. To justify our conclusion, reasons are essential. Abse....
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....t which is reproduced hereunder:- * "I have perused the order dated 27.5.2005 passed by Respondent 2 and I do not find any illegality in the order so as to interfere under Article 226/227 of the Constitution of India. The writ petition lacks merit and is liable to be dismissed." and the Court concluded as under:- * "In view of the specific stand taken by the Department in the affidavit which we have referred to above, the cryptic order passed by the High Court cannot be sustained. The absence of reasons has rendered the High Court order not sustainable. Similar view was expressed in State of U.P. V/s. Battan1. About two decades back in State of Maharashtra V/s. Vithal Rao Pritirao Chawan^2 the desirability of a speaking order was highlighted. The requirement of indicating reasons has been judicially recognised as imperative. The view was reiterated in Jawahar Lal Singh V/s. Naresh Singh^3. In Raj Kishore Jha V/s. State of Bihar^4 this Court has held that reason is the heartbeat of every conclusion and without the same, it becomes lifeless. "8. ... Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate ....
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....direct deployment of proceeds of crime and hence it has gone for attachment of property as value of the proceeds of crime. As evident from the contents of the Original Complaint the following properties attached under section 5(1) as mentioned on page 09 to 15 of OC and at page 185 to 190 of PAO have been stated to be properties attached as value of the proceeds of crime". No reasons are recorded by the adjudicating authority while issuing show cause notice in terms of Section 8(1). Having failed to record "reasons to believe" in terms of Section 8(1), in the opinion of this Court, the adjudicating authority has passed the impugned confirmation order dated 14.3.2023 which is liable to be quashed and set aside by exercising extraordinary jurisdiction under Article 226 of the Constitution of India. 20. At this stage, it is apposite to refer to position of law wherein the Hon'ble Supreme Court has consistently laid down the ratio that it is always open for the Court to exercise its extraordinary jurisdiction where there has been violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or vires of an Act are challenged. Consider....
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....y. Reliance was placed on page-8 of the said judgment. However, in the same judgment para-11 wherein exception are carved out, para-11 reads thus :- "11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation." The case of the present writ-applicant herein, in the opinion of this Court falls under Clause (iii) of para-11 wherein the order passed is in excess of jurisdiction. 20.3 In the case of State of Maharashtra and Ors. vs. Greatship (India) Ltd., reported in 2022 SCC OnLine SC 1262 which relied upon by Mr. Kshitij Amin, the learned advocate appearing for the respondent No. 1 holds that the writ-applicant herein be re....