# Ajeet Pandey v. Directorate of Enforcement

- **Citation:** (2024) 2 ILRA 51
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-13
- **Case number:** J. Criminal Misc. Writ Petition No. 737 of 2024
- **Bench:** Mrs. Sangeeta Chandra, Ajai Kumar Srivastava-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-pandey-v-directorate-of-enforcement-51435
- **Pages:** 8

## Headnote

Prevention of Money Laundering Act, 2002
(PMLA) - Sections 2(1)(a), 5, 6 & 8 -
Adjudicating Authority
-
Composition and
Jurisdiction - Chairperson Vacancy - Validity of
Single-Member Bench - Maintainability of Writ
Petition

The petitioner, a director of M/s Kandarp Hotels
Pvt. Lt and former managing director of M/s
Gangotri Enterprises Limited, challenged the
validity of proceedings before the Adjudicating
Authority under the PMLA, 2002, following a
Provisional Attachment Order dated 17.11.2023,
an Original Complaint No. 2119/2023, and a
Show Cause Notice dated 14.12.2023, arguing
that the Adjudicating Authority was not duly
constituted due to the absence of a Chairperson
after the retirement of Mr. Vinodanand Jha on
22.06.2023. The petitioner sought a mandamus
to direct the constitution of a proper Adjudicating
Authority under Section 6 and to stay proceedings,
claiming the single-member bench was coram non
judice. Held: Section 6(2) of the PMLA mandates
an
Adjudicating
Authority
comprising
a
Chairperson and two members, but Section
6(5)(b) allows the Chairperson to constitute
benches with one or two members. Section 6(7)
permits a single-member bench to hear matters,
with the option to transfer complex cases to a twomember bench. Section 6(13) provides that in any
vacancy (temporary or substantive) in the
Chairperson's office, the senior-most member can
act as Chairperson. The court rejected the
petitioner's contention that Section 6(13) applies
only to temporary vacancies, holding that the
absence of qualifiers in the provision indicates it
covers both types of vacancies, unlike Section
6(10), which explicitly addresses vacancies "other
than
temporary
absence."
The
procedural
requirement under Regulation 26(2) of the 2013
PMLA Regulations for the Chairperson's signature
on orders is directory, not mandatory, and does
not invalidate single-member proceedings. Relying
on Gold Croft Properties Pvt. Lt Vs Directorate of
Enforcement (2023 SCC OnLine Del 5900) and J.
Sekar Vs U.O.I. (W.P. (C) 5320/2017), the court
upheld the validity of a single-member bench. The
writ petition was dismissed as the petitioner had a
statutory remedy to file a reply before the
Adjudicating
Authority
and
approach
the
appropriate forum if aggrieved, as per N.P.
Ponnuswami Vs Returning Officer (AIR 1952 SC
64).

Case Law Cited:

## Text

2 All. Ajeet Pandey Vs. Directorate of Enforcement
51
----------
(2024) 2 ILRA 51
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2024
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE AJAI KUMAR SRIVASTAVA-I,
J.

Criminal Misc. Writ Petition No. 737 of 2024

Ajeet Pandey ...Petitioner
Versus
Directorate of Enforcement ...Respondent

Counsel for the Petitioner:
Ashish Chaturvedi

Counsel for the Respondent:
Kuldeep Srivastava, A.S.G.I.

Prevention of Money Laundering Act, 2002
(PMLA) - Sections 2(1)(a), 5, 6 & 8 -
Adjudicating Authority
-
Composition and
Jurisdiction - Chairperson Vacancy - Validity of
Single-Member Bench - Maintainability of Writ
Petition

The petitioner, a director of M/s Kandarp Hotels
Pvt. Lt and former managing director of M/s
Gangotri Enterprises Limited, challenged the
validity of proceedings before the Adjudicating
Authority under the PMLA, 2002, following a
Provisional Attachment Order dated 17.11.2023,
an Original Complaint No. 2119/2023, and a
Show Cause Notice dated 14.12.2023, arguing
that the Adjudicating Authority was not duly
constituted due to the absence of a Chairperson
after the retirement of Mr. Vinodanand Jha on
22.06.2023. The petitioner sought a mandamus
to direct the constitution of a proper Adjudicating
Authority under Section 6 and to stay proceedings,
claiming the single-member bench was coram non
judice. Held: Section 6(2) of the PMLA mandates
an
Adjudicating
Authority
comprising
a
Chairperson and two members, but Section
6(5)(b) allows the Chairperson to constitute
benches with one or two members. Section 6(7)
permits a single-member bench to hear matters,
with the option to transfer complex cases to a twomember bench. Section 6(13) provides that in any
vacancy (temporary or substantive) in the
Chairperson's office, the senior-most member can
act as Chairperson. The court rejected the
petitioner's contention that Section 6(13) applies
only to temporary vacancies, holding that the
absence of qualifiers in the provision indicates it
covers both types of vacancies, unlike Section
6(10), which explicitly addresses vacancies "other
than
temporary
absence."
The
procedural
requirement under Regulation 26(2) of the 2013
PMLA Regulations for the Chairperson's signature
on orders is directory, not mandatory, and does
not invalidate single-member proceedings. Relying
on Gold Croft Properties Pvt. Lt Vs Directorate of
Enforcement (2023 SCC OnLine Del 5900) and J.
Sekar Vs U.O.I. (W.P. (C) 5320/2017), the court
upheld the validity of a single-member bench. The
writ petition was dismissed as the petitioner had a
statutory remedy to file a reply before the
Adjudicating
Authority
and
approach
the
appropriate forum if aggrieved, as per N.P.
Ponnuswami Vs Returning Officer (AIR 1952 SC
64).

Case Law Cited:

1. Kamlesh Kumar Sharma Vs Yogesh Kumar
Gupta, AIR 1998 SC 1021

2. Gold Croft Properties Pvt. Lt Vs Directorate of
Enforcement, 2023 SCC OnLine Del 5900

3. J. Sekar Vs U.O.I., W.P. (C) 5320/2017 (Delhi
HC, 11.01.2018)

4. N.P. Ponnuswami Vs Returning Officer, AIR
1952 SC 64

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.
&
Hon'ble Ajai Kumar Srivastava-I, J.)

(1) Heard Shri N. K. Seth, learned
Senior Advocate assisted by Shri Ashish
Chaturvedi, for the petitioner and Shri
Kuldeep Srivastava, appearing for the
Opposite party no.1.
52 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) This petition has been filed by the
petitioner for the following main prayer:-

"1) Issue a writ, order or
direction in the nature of Mandamus
directing the Respondent no.3 to take steps
for constituting the Adjudicating Authority
in terms of the mandate of Section 6 of the
Prevention of Money Laundering Act,
2002."

(3) An application for interim relief
has also been filed wherein the following
prayers have been made:-

"a) Stay further proceedings
before the Adjudicating Authority as well as
operation of the Provisional Attachment
Order No. 09/2023 [u/s 5(1)] dated
17.11.2023 (Annexure
No.1)
and
all
consequential
proceedings
arising
therefrom including the Original Complaint
No. 2119/2023 dated 12.12.2023 (Annexure
No.2)
filed
before
the
Adjudicating
Authority (u/s 5(5)] and the Show Cause
Notice dated 14.12.2023 (Annexure No.3)
issued by the Adjudicating Authority [u/s
8(1)] as they are nullity in the eyes of the
law during the pendency of the Writ
Petition.

b) Hold that until the Respondent
No. 2 Adjudicating Authority is constituted
in terms of the mandate of law under
Section 6 PMLA, and a Chairperson is duly
appointed, it may not carry out any further
proceedings
with
respect
to
the
adjudication in original complaint no.
2085/2023 filed by Respondent No. 1, as a
single member Adjudicating Authority
without a Chairperson tantamount to
coram non judice,"

(4) A preliminary objection has been
raised by Shri Kuldeep Srivastava, saying
that the writ petition is not maintainable
only against Show Cause Notice and since
statutory remedy is available the writ
petition should not be entertained. Only a
Provisional Order of attachment was issued
by the Deputy Director of Enforcement and
thereafter the matter was referred to the
Adjudicating Authority. The Show Cause
Notice dated 14.12.2023 has been issued
thereafter by the Respondent no.2 under
Section 8 (1) of the Prevention of Money
Laundering Act (hereinafter referred to as
the 'PMLA' Act of 2002).

(5) It has been stated in the writ
petition that the petitioner is the Director of
M/s Kandarp Hotels Pvt. Ltd. and was the
erstwhile Managing Director of M/s
Gangotri Enterprises Limited and they had
taken loan from various Banks way back in
2007. The Company could not repay such
loan and opted for loan restructuring and in
June, 2013, the process of Corporate Debt
Restructuring was initiated with the support
of Bank of India which was the lead banker
at that stage. Initially, a letter of approval
for the Corporate Debt Restructuring was
given on 30.09.2013 and a final letter of
approval of restructuring was issued on
31.10.2013. The Bank of India declared the
Bank Accounts of M/s Gangotri Enterprises
Limited as Non-Performing Assets (NPA)
and subsequently the other Banks also
declared such accounts of the Company as
NPA. On 07.09.2016, a Joint Lenders
Meeting was held where the Members
decided to appoint Forensic Auditor for
conducting forensic audit of the accounts.
Later on, a report was submitted and the
Bank of India proposed for closure of
Forensic
Audit
Report
subject
to
submission / compliance of required
documents by the Company. In pursuance
of such letter, M/s Gangotri Enterprises
Limited, submitted all required documents
and the forensic audit was 'implidely'
2 All. Ajeet Pandey Vs. Directorate of Enforcement
53
closed. Post closure of Forensic Audit the
Bank of India itself sanctioned additional
credit limit facilities to the Company. In
2020, the F.I.R. No. RC2232020A0007 was
registered at CBI/AC-V, New Delhi, under
Section 120-B, 420, 468, 471 of the Indian
Penal Code, 1850 and Section 13 (2) read
with Section 13 (1) (d) of the Prevention of
Corruption Act, 1988. On 01.01.2021 an
ECIR bearing ECIR/LKZO/01/2021 was
registered by the Enforcement Directorate
by treating the subject F.I.R. as a scheduled
offence under the Act of 2002. The CBI
filed a Charge-Sheet on 30.06.2022 where
various sections of the IPC and the
Prevention of Corruption Act were dropped
and only Sections 420 read with Section
120-B IPC were mentioned. The petitioner
has been granted anticipatory bail in the
predicate offence by the Special Judge, CBI
(West), Lucknow on 20.05.2023.

(6) It has further been stated that the
petitioner is aggrieved by the Provisional
Attachment Order no.09/2023 issued by the
Respondent no.1 under Section 5 (1) of the
Act of 2002, where the properties owned
by the petitioner have been provisionally
attached. An
original
complaint
has
thereafter been filed by the Directorate of
Enforcement
registered
as
Original
Complaint No. 2119 of 2023 under Section
5 (5) of the Act of 2002, on 12.12.2023 and
in pursuance thereof, a Show Cause Notice
has been issued by the Respondent no.2 as
a member of the Adjudicating Authority on
14.12.2023.

(7) Learned counsel appearing on
behalf of the petitioner has argued that
there is no Adjudicating Authority available
as the Chairperson one Mr. Vinodanand
Jha, had retired on 22.06.2023, hence, the
proceedings that have been initiated by way
of Show Cause Notice, need to be quashed.

(8) Learned counsel appearing for the
petitioner has placed reliance upon Section
2 (1) (a) of the Act where Adjudicating
Authority has been defined as one
constituted under Sub-Section (1) of
Section 6. He has thereafter referred to
Section 6 Sub Section (1) where it has been
stated that the Central Government shall,
by notification, appoint an Adjudicating
Authority to exercise jurisdiction, powers
and Authority conferred by or under the
Act. Referring further to Section 6 (2),
the learned counsel has argued that the
Adjudicating Authority shall consist of
a Chairperson and two other Members
from the field of law, and from the field
of
Administration,
Finance
or
Accountancy.

(9) Learned Senior counsel has
referred to Sub-Section (5) & (6) to say that
under Clause (b), a Bench may be
constituted by the Chairperson of the
Adjudicating Authority with one or two
members as the Chairperson of the
Adjudicating Authority may deem fit; and
thereafter has referred to Sub-Section (7) of
Section 6 to say that if at any stage of the
hearing of any case or matter, it appears to
the Chairperson or a Member, that the case
or matter is of such a nature that it ought to
be heard by a Bench consisting of two
Members, the case or matter may be
transferred by the Chairperson or, as the
case may be, referred to him for transfer, to
such Bench as the Chairperson may deem
fit.

(10) It has been argued that since the
Chairperson alone can constitute Benches
and he is one who can transfer the matters
from one Bench to the other Bench. It is
evident that without the Chairperson the
Adjudicating Authority cannot function and
it can be said that without the Chairperson
54 INDIAN LAW REPORTS ALLAHABAD SERIES
there is no Adjudicating Authority in
existence.

(11) It has been argued by referring to
the Regulations of 2013 framed under Act
of 2002 that Regulations 26 Sub Clause-2
also says that every sheet of the order shall
bear the signature of the Chairperson and
Members constituting the Bench which
means that if the Chairperson is not
available then the order-sheet cannot be
authenticated.

(12) Learned counsel for the
petitioner has also placed reliance upon
Sub-Section (13) of Section 6 to say that in
the event of occurrence of any vacancy in
the office of the Chairperson by reason of
his death or resignation or otherwise, the
Senior most member shall act as the
Adjudicating Authority until the date on
which a new Chairperson enters upon his
office.

(13) It has been argued by the learned
Senior Counsel that the word 'Vacancy'
used in Sub-Section (13) should be read as
a temporary vacancy only and not a
permanent vacancy and only in case of a
temporary
vacancy
the
Senior
most
Member may act as the Chairperson. He
has argued that Sub-Section (10) of Section
6 deals specifically with a vacancy which
occurs for reasons other than temporary
absence,
and
how
the
Adjudicating
Authority has to continue with the
adjudication in such cases of substantive
vacancy. He argued that Sub-Section (10)
implies that the proceedings shall be held
up, in case if a permanent vacancy occurs
in the office of the Chairperson and
proceedings may be continued by the
Adjudicating Authority from the stage at
which the vacancy is filled, meaning
thereby that if there occurs a Permanent
Vacancy then proceedings would stop and
would resume only on appointment of
Chairperson.

(14) Shri N.K. Seth, has also referred
to Sub-Section (14) and has argued that it
provides how the hearings are to be
managed before the Adjudicating Authority
in case of temporary vacancy.

(15) In other words, Shri N.K Seth,
has stated that under Sub-Section (10), a
substantive vacancy has been referred to
and under Sub-Section (14) of Section 6, a
temporary absence has been referred to and
not a substantive vacancy and a provision
has been made by the Legislature with
regard to the various exigencies and how
the Adjudicating Authority should function
in each of such Administrative exigencies.

(16) It has been argued on the basis of
judgment rendered in Kamlesh Kumar
Sharma Vs. Yogesh Kumar Gupta and
others reported in MANU/SC/0110/1998
& AIR 1998 SC 1021, decided by the
Hon'ble Supreme Court on 09.02.1998; that
the Supreme Court was dealing with the
vacancies in non-Government Colleges on
the post of Teachers and in Paragraph-14, it
observed that the word 'Otherwise' has to
be read as 'ejusdem generis' that is to say in
a group similar to death, resignation, long
leave vacancy, invalidation, person not
joining after being duly selected. In other
words, it would be case of unforeseen
vacancies which could not be conceived
earlier
as
substantive
vacancy,
as
Substantive Vacancy relating to retirement
are vacancies that arise out with certainty
as the date of retirement of the incumbent
is known beforehand.

(17) It has been argued by Shri Seth
that the Supreme Court has interpreted the
2 All. Ajeet Pandey Vs. Directorate of Enforcement
55
word 'Otherwise' in such a manner that the
vacancies that are not certain should be
treated as temporary vacancies and not
substantive vacancies.

(18) Learned Senior counsel has
referred to Annexure No.15 at Page 456 of
the paper book and Paragraph-42 of the
writ petition which is a news item that after
retirement of the Vinodanand Jha as
Chairperson the Member, Finance Mr. P.K.
Upadhyaya, is working as Adjudicating
Authority and has argued that he has issued
the
Show
Cause
Notice
without
jurisdiction. He has referred to the contents
of the Paragraph-29 of the writ petition
which are to same effect i.e. since at
present
the
Adjudicating
Authority
comprises of a single member that too from
outside the field of law and he is neither the
Chairperson nor the Acting Chairperson,
the Adjudicating Authority cannot be said
to be constituted in terms of Section 6 of
the Act of 2002 and the composition of the
Adjudicating Authority suffers from the
vice of Coram Non-Judice.

(19) It has also been argued on the
basis of interim orders of different High
Courts, that a large number of High Courts
have stayed the proceedings before the
Adjudicating Authority
on
the
same
grounds as have been argued before us with
regard to Show Cause Notice/ Proceedings
being without jurisdiction. The counsel for
the petitioner has annexed copies of three
such interim orders passed by the different
High Courts in the paper book.

(20) The counsel for the Respondent
no.1 has argued that all such orders that
have been passed are interim orders of
different High Courts and carry only
persuasive value for this Court. He has
referred to a Final Order/ Judgment
rendered by the High Court of Delhi in LPA
No.167 of 2023 in the matter of Gold Croft
Properties Pvt. Ltd. Vs. Directorate of
Enforcement, decided on 19.09.2023 and
reported in 2023 SCC OnLine Del 5900.
He has read out the Paragraph no.1 of the
judgment to say that a similar argument
was raised by the appellants therein
challenging an order passed by the
Adjudicating Authority under the Act of
2002 disposing of an application filed by
the appellant praying for deferment of
proceedings
before
the
Adjudicating
Authority on the ground that the Bench at
that point of time suffered from "Coram
non-judice" as no Adjudicating Authority
had been constituted in terms of Section 2
(a) read with Section 6 (1) and (2) of the
PMLA, 2002. The writ court had rejected
such arguments and the appellant being
aggrieved had approached the Division
Bench in Letters Patent Appeal against
such order of the writ Court.

(21) The counsel for the Respondent
no.1 has taken this Court through the
observations made by the Division Bench
in Paragraph Nos.11 to 14 of the judgment
in Gold Croft Properties Pvt. Ltd. (supra)
which are being quoted hereinbelow:-

"11. Section 6 of the PMLA deals
with the composition of the adjudicating
authority and powers of the Adjudicating
Authority. Section 6(2) of the PMLA
provides that an Adjudicating Authority
shall consist of a Chairperson and two
other Members.

12. The question, therefore, as to
whether there can be a Bench consisting of
a Single Member is no longer a res integra
and has been settled in a Judgment dated
11.01.2018 passed by the Division Bench of
this Court in a batch of petitions i.e., W.P.
(C) 5320/2017 etc. in the case of J Sekar
56 INDIAN LAW REPORTS ALLAHABAD SERIES
vs. Union of India & Ors etc. Paragraph
Nos.79 and 80 of the said Judgment reads
as under:

"79. The Court next takes up the
question of the composition of the AA on
which extensive arguments were advanced
by the learned counsel for the Petitioners.
In this context, it must be noticed that
under Section 6 PMLA, the AA is supposed
to consist of the Chairperson and two other
members - one of whom shall be a person
having experience in the field of law.
Section 6(3) further sets out what the
qualifications for appointment as a member
of an AA should be. One of those
qualifications is that the person has to
be qualified for appointment as a
District Judge or a person in the field
of law or a member of an Indian Legal
Service. The other qualification is
possession of a qualification in the
field
of
finance,
accountancy
or
administration as may be prescribed.
It is, therefore, not the case that all
the members of the AA should be
judicial members.

80. It is seen that under Section 5
PMLA, the jurisdiction of the AA ?may be
exercised by the Benches thereof'. Under
Section 6(5)(b) PMLA, a Bench may be
constituted by the Chairperson of the AA
"with one or two members" as the
Chairperson may deem fit. Therefore, it is
possible to have single- member benches.
The word 'bench' therefore does not
connote plurality. There could, even under
Section 6(5)(b) PMLA, be a 'single member
bench'. When Section 6(6) PMLA states
that a Chairperson can transfer a member
from one bench to another bench, it has to
be understood in the above context of there
also
being
single-member
benches."
(emphasis supplied)

13. In view of the above, the
application filed by the Appellant that the
quorum of the Adjudicating Authority was
not complete cannot be accepted.

14. Section 6(7) of the PMLA
provides if at any stage of the hearing of
any case or matter it appears to the
Chairperson or a Member that the case or
matter is of such a nature that it ought to be
heard by a Bench consisting of two
Members, the case or matter may be
transferred by the Chairperson or, as the
case may be, referred to him for transfer, to
such Bench as the Chairperson may deem
fit."

(22) It has been submitted on the basis
of such judgment that not only the Division
Bench in Gold Croft Properties (supra) but
also a Division Bench of the Delhi High
Court in bunch of the writ petitions leading
case of which was J. Sekar vs. Union of
India & Ors. in Writ Petition No.5320 of
2017 by its judgment and order dated
11.01.2018 had rejected the arguments of
the writ petitioners therein regarding
defective composition of the Adjudicating
Authority.

(23) This Court has considered the
rival
submissions
and
also
carefully
perused the Section-6 of the Act which
refers to the composition and Powers etc.
of the Adjudicating Authority and it
provides that the Adjudicating Authority
shall consist of a Chairperson and two
members belonging to the field of Law,
Administration, Finance or Accountancy. It
does not say that the Chairperson shall only
belong to the field of law.

(24) This Court has also considered
the Sub-Section (5) of Section-6 which in
Clause-b mentions that a Bench may be
constituted by the Chairperson of the
Adjudicating Authority with one or two
Members as the Chairperson of the
2 All. Ajeet Pandey Vs. Directorate of Enforcement
57
Adjudicating Authority may deem fit.
Similarly
under
Sub-Section
(6)
the
Chairperson may transfer a Member from
one Bench to another Bench and under
Sub-Section (7) if at any stage of the
hearing of any case or matter it appears to
the Chairperson or a Member that the case
or matter is of such a nature that it ought to
be heard by a Bench consisting of two
Members, the case or matter may be
transferred by the Chairperson or, as the
case may be, referred to him for transfer, to
such Bench as the Chairperson may deem
fit.

(25) It is apparent from a perusal of
Sub-Section (7) that a matter can be heard
by one Member of the Adjudicating
Authority. A Bench can consist of one
Member only and a matter can be
transferred on sufficient grounds to a Bench
of two Members.

(26) This Court has also considered
Sub-Section-10 and does not find the
arguments made by the Senior Counsel of
any substance with regard to a case where
on a temporary absence or on a vacancy
having occurred in the office of the
Chairperson, the Proceedings/ Hearing
shall come to a halt and resume only when
vacancy is filled. Sub-Section (10) only
clarifies that in case of such vacancy or
temporary absence of one Member of the
Bench, the proceedings shall be continued
or
resumed
before
the
Adjudicating
Authority from the stage at which the
vacancy
is
filled
by
the
Central
Government.

(27) We have also gone through the
Sub-Section (13), on the basis whereof the
counsel for the petitioner had argued that
the vacancy referred therein is only of a
temporary nature providing that in such a
temporary
vacancy
the
Senior
Most
Member shall act as Chairperson of the
Adjudicating Authority only upto a date on
which the new Chairperson is appointed to
fill such vacancy, enters upon his office.

(28) This Court is of the considered
opinion that the Legislature does not waste
words. It used words which clarify its
intention Sub-Section (10) refers to a
Substantive vacancy as the Legislature has
used the words "other than a temporary
absence". On the other hand, under SubSection (13) the Legislature has used the
words "vacancy" alone and has not clarified
as to what type of vacancy it has in mind.
From a bare perusal of the language of
Sub-Section (13), this Court is of the
considered
opinion
that
since
the
Legislature has not used the same phrase as
it has used in Sub-Section (10) i.e. "If for
reasons other than temporary absence, any
vacancy occurs in the office of the
Chairperson or any other Member", it is
apparent that without suffixing or prefixing the word 'vacancy', with any other
descriptive noun the language used by the
Legislature is unambiguous and that any
type of vacancy, be it substantive or
temporary, has to be dealt with under SubSection (13) in the manner as provided
therein.

(29) Learned Senior counsel has
referred to Regulations of 2013 framed
under the Act of 2002 and Regulations 26
Sub-Clause 2 thereof. The orders of the
Adjudicating Authority need to be signed
on every page by the Chairperson and the
Members constituting the Bench. The SubClause (2) of Regulation 26 is only a
procedural requirement and it reference as
to how the order-sheet is to be maintained.
The word 'shall' used in Sub-Clause (2) can
be read as 'may' being a directory provision
58 INDIAN LAW REPORTS ALLAHABAD SERIES
and not as mandatory provision as no
sanction is attached in case of non-signing
of the order-sheet by the Chairperson. In
other words, such interpretation abides by
the very language of Section 6 of the Parent
Act i.e. Act of 2002 which clearly provides
that Chairperson can constitute a Bench
either with one Member or with two
Members and in case, there is a matter of
substantial importance which requires
hearing by two Members Bench, he can
transfer a matter from one Member Bench
to a Division Bench/ Two Members Bench.
The "Bench" does not necessarily mean a
Division Bench as is the established
practice in all judicial fora. Even a Bench
of the High Court having a single Judge is
referred to as a "Bench" and acts as a
Court.

(30) This Court is also of the
considered opinion that the law was settled
by the Constitution Bench of the Hon'ble
Supreme Court in the case of N.P.
Ponnuswami
Vs.
Returning
Officer
reported in AIR 1952 SC 64, where it was
categorically held that where rights and
liabilities are created under statute and
remedies are provided in the statute then
such remedies should be availed of first
before the extraordinary Writ jurisdiction
under Article 226 of the Constitution of
India can be invoked.

(31) This Court is of the considered
opinion that the petitioner has remedy of
approaching the Adjudicating Authority by
filing his reply and he should file his reply
taking all legally permissible grounds as
are available to him, and if he is then
aggrieved, he has liberty to approach the
Appropriate Forum.

(32)
 The
writ petition
stands
dismissed.

(33) No order as to costs.
----------
(2024) 2 ILRA 58
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

First Appeal From Order No. 321 of 2023

Saurabh Gupta ...Appellant
Versus
Smt. Archna Gupta & Ors. ...Respondents

Counsel for the Appellant:
Vipul Gupta, Pritish Kumar

Counsel for the Respondents:
Ankit Srivastava, R.B.S. Rathaur, Rajneesh
Maurya

...
Prohibition
of
Benami
Property
Transactions Act, 1988-Section 2(9)(b)
(iii)- Appellant filed a Civil Suit- impleading the
respondents as defendants- for a declaration
that he is the co-sharer of 1/4th part -property
belongs to joint family-e it was purchased by
the
father
of
the
appellant-
injunction
application - rejected-impugned- Sectiontion
2(9)(b) (iii) of Act, 1988 -prescribes that if the
husband purchased the property in the name of
his wife or children-the same will not be said to
be Benami property-but will be deemed to be
purchased by the husband out of his source-
prima facie the property is joint Hindu family
property-protection
of
property
from
transferring to a third party is necessaryimpugned order set aside-Appeal allowed.

Held:

This Court under Sectiontion 114 of Indian
Evidence Act may presume the existence of fact
that the property purchased by Hindu husband
in the name of his spouse, who is homemaker
and does not have independent source of
income, will be the property of family, because