1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.44 OF 2009 Navneet Vrandavanlal Pittie .. Petitioner V/s. The State of Maharashtra & Ors. .. Respondents Mr.Rajiv L.Patil with Mr.Milind S. Sawant for the Petitioner. Mr.Dilip Shukla for Respondent Nos. 3 and 4. Mr.S.N.Gawade, A.P.P.for the State. CORAM : S.A. BOBDE, J. DATE : SEPTEMBER, 2 nd 2009. ORAL ORDER:- Rule, returnable forthwith. Heard by consent. 2. By this petition the Petitioner has challenged the order dated 7th October, 2008 passed by the Additional Sessions Judge, Greater Bombay rejecting their application for de-sealing the premises sealed by Respondent No.1 under the provisions of Maharashtra Protection of Interests of Depositors (In financial Establishments) Act, 1999 ( hereinafter referred as the M.P.I.D. Act) and release the property. The 2 property in question is office premises Nos.13, 13A, 13B, 13C, 13D, 13E and 13F situated on the second floor of the building known as Rajabahaddur Mansion 28, Bombay Samachar Marg, Fort, Mumbai – 400 023. 3. The petitioner is admittedly the owner of the premises. According to the petitioner his father created a tenancy of this premises in favour of certain firm which sublet the premises to M/s.Green Gold Horticulture Ltd. The proprietor of M/s. Green Gold Horticulture Ltd., is one Mahendrabhai Gadia is the accused in a case filed under the M.P.I.D. Act. The charge sheet is filed under that Act against the said Mahendrabhai Gadia and others. 4. In the year 2003 the Petitioner filed a suit against the tenants which was decreed on 30th August, 2005. The petitioners father addressed a letter to Respondent No.1 calling upon him to de-seal the premises and for release of the property since he was the owner and landlord of the property, armed with a decree. Since this request was not acceded to, the Petitioner moved the application before the M.P.I.D. Special Court i.e. Misc.Civil application No.31 of 2007 has been heard and rejected by the learned Special Court by the impugned order. The Sessions Court has not caste any doubt of the petitioner’s ownership of 3 the property or his right in respect thereof. The learned Sessions Court has however made observations about the decree obtained by the Petitioner as a collusive decree because the tenants did not contest, without of course setting aside the decree. According to the learned Sessions Judge the decree will have force only in case the property in question is released in favour of the tenants. The Sessions Court therefore has rejected the application for release. Further, the Sessions Court has observed that the Apex Court has directed that all attachments made by the Competent Authority shall subsist until further orders of this Court. On this ground also the petitioners application has been dismissed. 5. Shri Patil, the learned counsel for the Petitioner submitted that the order of the learned Sessions Court suffers from a gross error of law apparent on the face of the record in as much as the Sessions Court has proceeded on the basis that there is an attachment on the property under the provisions of M.P.I.D. Act and that such an attachment cannot be disturbed at the instance of the petitioner. Shri Patil submits that there is no attachment under the provisions of the M.P.I.D. Act, and the prayer is therefore only for de-sealing the premises in view of the decree for possession obtained by the Petitioner. 6. Undoubtedly, if there is an attachment under the Act, it 4 cannot be except in accordance with the provisions of the Act. It is, therefore, necessary to see whether the property is at all attached under the provisions of M.P.I.D. Act, 1999. Section 4 of the M.P.I.D. Act read as follows : “4. Attachment of properties on default of return of deposits - (1) Notwithstanding anything contended in any other law for the time being in force,- (i) where upon complaints received from the depositors or otherwise, the Government is satisfied that any Financial Establishment has failed,- (a) to return the deposit after maturity or on demand by the depositor; or (b) to pay interest or other assured benefit; or (c) to provide the service promised against such deposit; or (ii) where the Government has reason to believe that any Financial Establishment is acting in a calculated manner detrimental to the interest of the depositors with an intention to defraud them; and if the Government is satisfied that such Financial Establishment is not likely to return the deposits or make payment of interest or other benefits assured or to provide the services against which the deposit is received, the Government may, in order to protect the interest of the depositors of such Financial Establishment, after recording reasons in writing, issue an order by publishing it in the Official Gazette, attaching the money or the property believed to have been acquired by such Financial Establishment either in its own name or in the name of any other person from out of the deposits, collected by the Financial Establishment, or if it transpires that such money or other property is not available for 5 attachment or not sufficient for repayment of the deposits, such other property of the said Financial Establishment or the promoter, director, partner or manager or member of the said Financial Establishment as the Government may think fit. (2) On the publication of the order under sub- section (1), all the properties and assets of the Financial Establishment and the persons mentioned therein shall forthwith vest in the Competent Authority appointed by the Government, pending further order from the Designated court. (3) The Collector of a District shall be competent to receive the complaints from his District under sub-section (1) and he shall forward the same together with his report to the Government at the earliest and shall send a copy of the complaint also to the concerned District Police Superintendent or Commissioner of Police, as the case may be, for investigation.” 7. It is obvious from the section that an attachment under the Act can only be at the instance of the Government which may, after recording reasons in writing, issue the order by publishing it in a official gazette attaching the property believed to have been acquired by a delinquent financial establishment. After such attachment by reason of sub section 2. The properties vest in the Competent Authority appointed by the Government pending further orders from the Designated Court. 8. The learned A.P.P. relied on the Roznama dated 11th December, 2000 of the Special Court, where the following entries are 6 recorded : “Ms.Joshi Special Public Prosecutor. Investigating Officer Mr.Wagh present. Certain movable and immovable properties of the accused in this case have been found out during investigation. The accused are absconding. The Investigating Officer applies for attachment of properties. Investigation is in progress. The Investigating Officer is entitled to attach the properties. Copy of the First Information Report is taken on record. Investigating Officer’s report taken on record. The Sessions Registrar shall assign Special Case Number.” 9. The aforesaid entry cannot be held as an order of attachment. In fact, in pursuance of the aforesaid entry, it is an admitted position that the Government did not take any steps for attachment of the property as contemplated by law and no attachment under the Act came into force. Similarly, there is no other order produced by the Respondents to suggest that the property in question has been attached under the provisions of the Act. Having regard to the fact that the petitioner is admittedly owner of the property in question and there is a decree in his favour in respect of the property, there is no reason why the property should not directed to be de-sealed and handed over to the petitioner in accordance with law. 10. In view of the matter rule is made absolute in terms of prayer clause “b” which reads as follows: 7 “ This Hon’ble Court be pleased to quash and set aside the order dated 7.10.2008 in Special case No. 45 of 2000 in Misc. Application No.31 of 2007 passed by the Hon’ble Sessions Judge and direct the Respondent No.1 to release the said property immediately in C.R. No.106 of 1999 G.B.C.B.C.I.D.,Economic Cell, Crime Branch, C.I.D. Mumbai and also direct the Respondent No.1 to hand over vacant and peaceful possession to the Petitioner”. ( S.A. BOBDE, J.)