J&K HC sets aside ED order asking not to issue revenue extracts of properties not attached under money laundering law
Srinagar: The Jammu and Kashmir High Court Tuesday observed that the designated officers of the Directorate of Enforcement (ED), Government of India, cannot ask the Union Territory’s revenue officers not to issue revenue extracts of properties not attached under the money laundering law.
The court was hearing a writ petition by the Trison Farms and Construction Pvt. Ltd. of which Zahoor Ahmad Watali, detained under money laundering case, is a promoter director.
The petition had been filed through Sarwa Begum, wife of Watali, and also a director of the firm.
The petition, according to the judgment raised a significant question of law as to whether it is permissible for a lower rank officer like an Assistant Director, ED, to ask a Tehsildar not to issue revenue extracts of the properties left out of the attachment order.
The petitioner lady through her counsel R A Jan submitted before the court that she wanted to dispose off certain unattached properties at Narbal, Budgam, but the extracts were being denied to her by the concerned Tehsiladr on the basis of an “unlawful” communication by an Assistant Director at ED.
A division bench comprising Justices A M Magrey and Vinod Chatterji Koul in their verdict said that “the court is of considered view that it is not permissible for the designated officer of ED, acting under the provisions of Act, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis-à-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 judgment read “the question of doing so by respondent the Assistant Director, who is neither the Director or an officer of the rank not below the rank of Deputy Director and authorized 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, it added.
“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,” said the bench.
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, it added.
“This court thus is of the view and concludes that the impugned communication by Assistant Director 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,” said the bench.
It, accordingly quashed the communication, saying “once the final report/complaint has been filed by the ED before the competent court hearing Watalis’s case 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.”