Dismissed

FPA-PMLA-3200/DLI/2019 of Sarwa Zahoor v. The Deputy Director, Directorate of Enforcement, New Delhi

ATFP19 Feb 2020FPA-PMLA-3200/DLI/2019

Case brief

AI extract

What is this about?

Appeal against a revision order sought delivery of possession of a ground floor property attached under FEMA/PMLA. Tribunal dismissed application to revisit correction in Adjudicating Authority order and dismissed stay plea, rejecting claim of compact unit due to prior rental.

What did the court decide?

Application to revisit corrigendum order and application for stay of prejudicial order dismissed.

FPA-PMLA-3200/DLI/2019 of Sarwa Zahoor Vs… — Constitutional and Fundamental Rights | ATFP (2020)

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APPELLATE TRIBUNAL FOR SAFEMA, FEMA, PMLA, NDPS & PBPT ACT AT NEW DELHI

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Date of Decision: 19.02.2020

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MP-PMLA-6817/DLI/2020 (Revisiting Order) MP-PMLA-6871/DLI/2020 (Stay) MP-PMLA-6388/DLI/2019 (Stay) FPA-PMLA-3200/DLI/2019

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Sarwa Zahoor

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… Appellant/Applicant

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Versus

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The Deputy Director, Directorate of Enforcement, New Delhi & Ors. … Respondents

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Advocates/Authorized Representatives who appeared

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For the Appellant : Mr. Riyaz Ahmad Jam, Sr. Advocate Mr. R.K. Rawal,Authorised Representative For the Respondent no.1 (ED) : Mr. Mohd. Faraz, Advocate CORAM SHRI G. C. MISHRA : ACTING CHAIRMAN

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JUDGMENT

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MP-PMLA-6817/DLI/2020 (Revisiting Order) & MP-PMLA6871/DLI/2020 (Stay of letter dated 14.01.2020)

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An application dated 06.01.2020 is filed by the appellant, inter-alia, to revisit the order dated 17.10.2019 passed by this Tribunal and direct the delivery of the possession of the ground floor of the property attached.

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The said application has been filed, inter-alia , on following legal and factual grounds:-

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(i) During the pendency of this appeal the Adjudicating Authority passed an order dated 09.10.2019 by way of corrigendum in the order dated 28.06.2019 which is subject

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MP-PMLA-6817/DLI/2020 & MP-PMLA-6871/DLI/2020 in FPA-PMLA-3200/DLI/2019

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Page 1 of 6

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matter of challenged before this Tribunal by way of the present appeal. The said order dated 09.10.2019 is illegal as the same has been passed by the Adjudicating Authority after having become funtus officio. The said order dated 09.10.2019 is passed behind the back of the appellant.

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(ii) The said order is an order of review in disguise of corrigendum which altered the material conditions of duration stipulated in the order dated 26.08.2019.

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(iii) The power of review is not an inherent right but a statutory right available in law only when provided under the relevant statute. There is no provision under the PMLA, 2002 vesting the power to review, the final order, on the Adjudicating Authority. The order dated 09.10.2019 is legally untenable being non-est in law.

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(iv) The property in question is a compact single dwelling unit (duplex type) identified as L-25/4, DLF, Phase-II, Gurgaon there is only one kitchen in the said compact premises which is situated on the ground floor and the adjudication of the part of the order dated 17.10.2019 would result in blocking access to the kitchen in the said premises and the same would severely compromise the usability of the premises by the applicant and his family.

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(v) Due to severe winter condition prevailing in Srinagar the younger son and the entire family of the appellant including his younger son Dr. Yasir Gaffar Watali and his family comprising of his wife and two infant daughters have already shifted to Delhi and are residing in the property attached and shifted from Kashmir to escape the present freezing cold in Kashmir. Further Dr. Yashir

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MP-PMLA-6817/DLI/2020 & MP-PMLA-6871/DLI/2020 in FPA-PMLA-3200/DLI/2019

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Page 2 of 6

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Watali (son of appellant) and his family has also shifted from Kashmir and residing in the said residential property.

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The appellant has filed another application bearing no. MP-PMLA6871/DLI/2020 praying therein to stay the operation of letter no. ECIR/03/DLZO/II/2017/AD(AK)/14687 dated 14.01.2020 on the similar legal grounds as has been taken in para no. 2 (i) to (iii) above.

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The application dated 06.01.2020 was taken up for hearing. The argument on behalf of the appellant was submitted by Learned Sr. Counsel. Shri Mohd. Faraz, the learned counsel for the Respondent had argued on the application for some time and sought one week time to file the reply which was allowed till 03.02.2020 and the parties were directed to maintain ‘ status quo’ in respect to the property in question.

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The reply to the said application has been filed by the Respondent on 03.02.2020, inter-alia , on following legal and factual grounds:-

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(i) Pursuant to the order dated 26.08.2019, a corrigendum dated 09.10.2019 was issued by the Adjudicating Authority wherein the period of ‘ninety days’ was order to be read as ‘three hundred sixty-five days’ there is no pre-requirement to file a complaint in terms of Section 8(3)(a).

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(ii) The provisional attachment order was passed prior to the coming into force of amendment to Section 8(3)(a) of the said Act. So, the contention of the applicant/appellant that the period of ninety days shall apply in terms of Section 8(3)(a) is misconceived.

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MP-PMLA-6817/DLI/2020 & MP-PMLA-6871/DLI/2020 in FPA-PMLA-3200/DLI/2019

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Page 3 of 6

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(iii) The contentions raised in the applications are subject matter of another appeal which has been filed by the appellant against the order dated 09.10.2019.

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(iv) The corrigendum did not result in change of facts which would substantially affect the right of the applicant. The corrigendum was for correcting a bonafide error which was on account of amendment in the Prevention of Money Laundering Act, 2002.

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(v) The corrigendum issued not a review order. It was to correct a bonafide order in accordance with Section 8(3)(a) of PMLA. The attachment proceedings are civil in nature.

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(vi) The applicant also placed on record the unregistered lease deed in favour of one Mr. Saleem Abdullah. It is admitted that the applicant is living in Srinagar at that time and based on these facts the applicant got partial stay order in the said application.

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(vii) The applicant is now pleading new facts that the apartment is a compact dwelling unit. The applicant is completely silent about leasing a floor to Saleem Abdullah. A new plea has been raised that there is only one kitchen. The applicant has misled the Tribunal at the time of hearing of the stay application. The appellant be directed to give vacant and peaceful possession of the first floor-1 as well. The application be dismissed with cost.

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Heard both the parties and perused the pleadings presented in writing. The appellant has taken the legal plea about the incompetence of the Adjudicating Authority in passing the order dated 09.10.2019 by way of corrigendum. The said order dated 09.10.2019 is under challenged before

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MP-PMLA-6817/DLI/2020 & MP-PMLA-6871/DLI/2020 in FPA-PMLA-3200/DLI/2019

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Page 4 of 6

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this Tribunal vide FPA-PMLA-3385/DLI/2019 and the same is pending. The legal plea which has been taken in the application has also been taken in that appeal. If the order dated 09.10.2019 is considered and any decision is taken in the present application on the same legal issue than it would have the effect on the merit of the said appeal bearing no. FPA-PMLA3385/DLI/2019. Therefore, the contention raised in the appeal cannot be considered without hearing the aforesaid appeal no. FPA-PMLA3385/DLI/2019 on merit.

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So far as the factual aspects is concerned, the applicant has taken a new stand that apartment is a compact dwelling unit (duplex type). If the copy of the appeal as well as the stay application filed earlier are perused nowhere this plea was taken. Earlier also it was pleaded by the applicant that her son Dr. Yawar Zahoor Watali with his family is residing in the first floor of the building and the ground floor is rented out for Rs. 10,000/p.m. Even the applicant had filed copy of the unregistered rent agreement which was expiring on 15.01.2020. If the apartment is a compact unit then the applicant would not have rented it out to a third party/outsider. The rented portion was rented out for eleven months during which period the appellant’s son with his family members have been residing in one of the floor without any inconvenience or grievance that the kitchen is in the other floor. So the contention of the applicant that she required the other floor on this ground cannot believed as such the same plea is rejected.

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The other plea that has been taken is that due to severe cold in Kashmir the other family members of the applicant has moved to Delhi and they are staying in the said premises. Had there been so the applicant would not have rented one of the floor to a third party till 15.01.2020. Even the application dated 06.01.2020 does not speaks about the tenant to whom

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one of the floor was rented out.

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MP-PMLA-6817/DLI/2020 & MP-PMLA-6871/DLI/2020 in FPA-PMLA-3200/DLI/2019

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Page 5 of 6

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The order of handing over the possession of rented floor was passed on 17.10.2019. The applicant accepted the order. When the date of handing over the possession came she tried to retain the possession on different grounds. The said grounds are discussed above.

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I do not find any prima facie grounds to re-visit the order dated 17.10.2019, therefore, the application no. MP-PMLA-6817/DLI/2020 is dismissed. Consequently, the application for stay vide MP-PMLA6871/DLI/2020 (Stay of the operation of letter dated 14.01.2020) is also dismissed.

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FPA-PMLA-3200/DLI/2019

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List on 28^th August, 2020, the date already fixed for hearing.

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(G. C. Mishra) Acting Chairman

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New Delhi, 19^th February, 2020

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‘AS’

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MP-PMLA-6817/DLI/2020 & MP-PMLA-6871/DLI/2020 in FPA-PMLA-3200/DLI/2019

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Page 6 of 6

FPA-PMLA-3200/DLI/2019 of Sarwa Zahoor v. The Deputy Director, Directorate of Enforcement, New Delhi

Case brief

What is this about?

What did the court decide?

FPA-PMLA-3200/DLI/2019 of Sarwa Zahoor v. The Deputy Director, Directorate of Enforcement, New Delhi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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