Madras High Court
V.Palaniappan … vs Competent Authority on 28 January, 2025
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
WP.No.9124 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.01.2025
PRONOUNCED ON : 28.01.2025
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.P.No.9124 of 2001
V.Palaniappan … Petitioner
Competent Authority
SAFEM (FOP) A & NDPS Acts
Govt of India,
Ministry of Finance,
Department of Revenue
64/2, “Utsav”
G.N.Chetty Street
Chennai.
2.The Registrar
Appellate Tribunal for Forfeited property
Khan Market,
Lok Nayak Bhavan, 4th Floor
New Delhi – 110 003. ... Respondents
PRAYER : Writ petition filed under Article 226 of Constitution of India
to issue a Writ of Certiorari to call for the records of the 2nd respondent
herein in its proceedings in MP.No.7 MDS/97 & MP.1/MDS/2001 in
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FPA.1/MDS/97 dated 08.02.2001 and quash the same.
For Petitioner : Mr.B.Sathish Sundar
For Respondents : Mr.AR.L.Sundaresan
Addl. Solicitor General of India
Assisted by Mr.V.Chandraskearan, SPC
for R1 & R2.
ORDER
(The Order of the Court made by Justice M. JOTHIRAMAN)
Under assail is the order dated 08.02.2001 passed by the Appellate
Tribunal proceedings in MP.No.7 MDS/97 & MP.1/MDS/2001 in
FPA.1/MDS/97. The unsuccessful appellants before the Appellate
Tribunal have preferred the present writ petition.
2. The brief case of the petitioner is as follows :-
(i) The petitioner is the son of D.Veerappan who is the also the
husband of the V.Kaliammal. The said Veerappan was detained under
the provisions of the Maintenance of Internal Security Act (hereinafter
referred to as “MISA”) and later by an order of detention dated
20.12.1974, under the provisions of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 [hereinafter
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WP.No.9124 of 2001referred to as “COFEPOSA”] during emergency time. It was the case of
the Department that the said Veerappan during October 1972 to February
1973 received a sum of Rs.7,65,000/- from persons abroad through
Hawala channels and distributed a sum of Rs.7,67,000/- during the
relevant period to several persons residing in India. In connection with
the said transactions, the said Veerappan was proceeded against under
Section 50 of the Foreign Exchange Regulation Act, 1973 [hereinafter
referred to as “FERA”] for alleged contravention of Section 9(1)(b) and
9(1)(d). The Adjudicating Authority as well as the Appellate Authority
confirmed the penalty of Rs.10,000/- each for the aforesaid charges made
against the said person. Notice was affixed in the last known residence,
by an order dated 16.12.1996, the Competent Authority proceeded to
forfeit the property in terms of Section 7 of The Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 1976 [herein after
referred to as “Act”]. The petitioner preferred an appeal before the
Appellate Tribunal in FPA.No.1 & 2/MDS/97, along with petitions in
MP.Nos.7 & 9/MDS/97, before the Appellate Tribunal.
(ii) The Appellate Tribunal remanded the matter to the Competent
Authority with a direction to consider the documents and submissions
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made by the petitioner. The petitioner appeared through his Counsel and
made submissions and based on the records available with them. It was
their case that the properties, which are the subject matter of the
proceedings, were purchased even as early as in the years 1964, 1965 and
1973. The first item of the property was purchased by the said
Veerappan by a registered sale deed dated 01.06.1964, for a sale
consideration of Rs.3,000/-. Out of the said sum, the said Veerappan
promised to discharge a sum of Rs.1,500/- borrowed by the vendor under
the sale deed from the brother of the said Veerappan and paid the balance
sum of Rs.1,500/- to the vendors, that too out of the agricultural income
derived from the ancestral agricultural lands. The third item of property
was purchased in the year 1965 under the sale deed dated 09.06.1965, for
the sale consideration of Rs.1,000/- only. The vendor of the property had
earlier borrowed a sum of Rs.500/- on 27.04.1965, under a promissory
note from the person affected / Veerappan. Interest on the said amount
was worked out to Rs.12/-, an amount of Rs.512/- was adjusted against
the sale consideration and paid the balance sum of Rs.498/- was paid to
the vendor. In respect of the second item of the property, the person
affected purchased the same by a Registered sale deed dated 02.05.1973
from one Kuppanna Gounder. The said Kuppanna Gounder had earlier
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executed a promissory note in favour of one Chellammal and had
borrowed a sum of Rs.2,000/- from the said Chellammal on 24.01.1972
and interest on the same was worked out to Rs.300/-. The person
affected took over the said debt under the promissory note and paid the
balance amount of Rs.700/- towards the sale consideration under the sale
deed dated 02.05.1973.
(iii) The Appellate Tribunal confirmed the order of the Competent
Authority and held that the petitioner had not discharged the burden cast
on him under Section 8 of the Act and failed to establish that the
properties were acquired from funds generated out of legal sources.
Aggrieved over the same, the present writ petition has been filed.
3. The learned counsel appearing for the petitioner would submit
that the entire proceedings emanating from Section 6(1) of the Act are
bad in law, as the notice under Section 6(1) is stereotyped and does not
disclose any material to initiate proceedings. The learned counsel for the
petitioner, to strengthen his contentions relied upon the judgments of the
Hon’ble Supreme Court reported in (2003) 7 SCC 436 – Fathima
Mohammed Amin v. Union of India and another and in the case of
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P.P.Abdullah and others v. Competent Authority reported in AIR 2007
SC 946. He submitted that the notice under Section 6(1) should establish
if there is any link and nexus between the holding of assets and that
illegality committed disclose the materials and make such materials
available along with the notice as mandated. It is not known whether
service of the same was effected in 1986 on the person affected, the
detenue Veerappan. Hence, non supply of reason recorded had caused
serious prejudice to the petitioner. Thereafter, on recommencement of
proceedings in 1996, a copy was served on the wife of the person
affected without supplying of any other materials. The properties were
acquired by purchase and under partition by the person affected as early
as 1964, 1965 to 1973 and there is no no nexus between such acquisition
and the alleged illegal earnings of the person affected, Veerappan. He
would further submit that Section 6(1) notice is of the year 1986, and the
proceedings were recommended by the authority in the year 1996, and
the appeal rejected by the Appellate Tribunal / second respondent in the
year 2001. The legal heirs of the person affected, wife and son had
produced account books, sale deeds, partition deeds, affidavits of
villagers and promissory notes showing borrowal by the person affected
to justify the sources for holding the property. The authority concerned
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did not considered the above material documents, thus violative of
principles of natural justice “audi alteram partem” the Tribunal under
the impugned order stated that the documents do not inspire confidence,
and the appellants in the Tribunal had only adopted delaying tactics and
filed documents belatedly. In such view of the matter, the orders under
challenge are unsustainable and the petitioners, who are legal heirs of the
person affected, cannot be made to suffer on account of the protracted
proceedings.
3(i) To strengthen his contentions, the learned counsel relied on
the following decisions :-
(i) AIR 1969 SC 1297 – State of Gujarat V.
Patil Raghav Natha and others.
(ii) (1994) 1 SCC 44 – Ramchand V. Union of
India
(iii) (1997) 6 SCC 71 – Mohammed Kavi
Mohammed Amin v. Fatmabai Ibrahim.
(iv) AIR 1998 SC 688 – M/s.Hindustan Times
Ltd V. Union of India.
(v) 2003 (2) Gujarat Law Reports in
SCA.No.11079 and 11080 of 2000 dated 25.07.2002.
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(vi) Tribunal’s order in the case of Meera
Rani Mazumdar reported in 1987 (166) ITR 230.
(vii) Tribunal’s order in Mohammed Golam
Rasul Mia reported in 1990 (181) ITR 206.
(viii) Tribunal’s order in Chandan Kumar
Saha – 1989 (179) ITR 183.
3(ii) The learned counsel would further submit that the Tribunal is
the last fact finding body and therefore under obligation to weigh the
material and give considered findings as settled in (1959) 37 ITR 151 –
Omar Salay Mohamed Sait V. CIT, Madras. The value of the
properties can be seen from the documents at the time of their acquisition
which was only Rs.7000/- or at best Rs.70,000/-. The question of
forfeiture or taking over the properties by the Competent Authority
would not arise and would be opposed to the guidelines of the Ministry
of Finance in F.No.12/23/93-CA dated 23.06.1994. In this guidelines,
the Government has taken a conscious decision not to forfeit properties
in two situations where proceedings are yet to be initiated and where
proceedings have already been initiated. Even in cases of final orders
have been passed by the Competent Authority, where the value of the
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property does not exceed Rs.1 Lakh, the Government opined that further
action for taking possession under Section 15 need not be pursued.
3(iii) He would draw the attention of this Court to the fact that the
Hon’ble Division Bench of this Court in WP.Nos.5051 and 5052 of 2018
vide order dated 25.09.2019, referred a Division Bench judgment
rendered in Competent Authority V. M.Khader Moideen – (2017) (1)
LW (crl.) 139 which requires reconsideration. Further vide order dated
25.09.2019, this Hon’ble Court observed that the distinction sought to be
made between the person who is charged as the main offender and the
properties owned by his friends and relatives are not available, under the
Act. Similarly, the extent of the material required, while issuing the
show-cause notice including the reasons for it, is also a matter for
consideration. The above said reference is still pending. He would
submit that another issue in the above said case is that while issuing
show cause notice under Section 6(1) of SAFEMA, is there any link or
nexus between the holding of the Assets and that of the illegality
committed has to be considered.
4. Per contra, Mr.AR.L.Sundaresan, learned Additional Solicitor
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General of India would submit that the issue which has been referred to a
larger bench in Competent Authority V. M.Khader Moideen – (2017)
(1) LW (crl) 139 deals with a situation which is different from that of
the present case. In the case referred to above, the main question that
arose for consideration was whether, while issuing show cause notice
under Section 6(1) of the SAFEMA there must be any link or nexus
between the holding of the Assets and that of the illegality committed.
During the pendency of the reference, proceedings involved in the issues
would not remain stayed till the decision of the larger bench. To
strengthen his contention, he relied upon the judgments of the Hon’ble
Supreme Court reported in
(a) (2009) 13 SCC 608 – Harbhajan Singh and another v. State
of Punjab and another wherein it is held as follows :-
“14. In the aforementioned decision in Hardeep
Singh [(2009) 16 SCC 785 : JT (2008) 12 SC 7] , the
learned Judges had referred to a judgment of this
Court in Rakesh v. State of Haryana [(2001) 6 SCC
248 : 2001 SCC (Cri) 1090] wherein it was held that
even without cross-examination on the basis of a
prima facie material which would enable the Sessions
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WP.No.9124 of 2001Court to decide whether the power under Section 319
of the Code should be exercised or not stating that at
that stage evidence as used in Section 319 of the Code
would not mean evidence which is tested by cross-
examination.
15. Even if what is contended by the learned
counsel is correct, it is not for us to go into the said
question at this stage; herein cross-examination of the
witnesses had taken place. The Court had taken into
consideration the materials available to it for the
purpose of arriving at a satisfaction that a case for
exercise of jurisdiction under Section 319 of the Code
was made out. Only because the correctness of a
portion of the judgment in Mohd. Shafi [(2007) 14
SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR
1023 : (2007) 5 Scale 611] has been doubted by
another Bench, the same would not mean that we
should wait for the decision of the larger Bench,
particularly when the same instead of assisting the
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appellants runs counter to their contention.”
(b) (2012) 11 SCC 321 – Ashok Sadaraangani and another v.
Union of India and others wherein it has held as follows :-
“23. The learned Additional Solicitor General
contended that having regard to the divergent views
expressed by different Benches of this Court, when the
same issue surfaced in Gian Singh v. State of Punjab
[(2010) 15 SCC 118] , wherein the decisions in B.S.
Joshi case [(2003) 4 SCC 675 : 2003 SCC (Cri) 848] ,
Nikhil Merchant case [(2008) 9 SCC 677 : (2008) 3
SCC (Cri) 858] and Manoj Sharma case [(2008) 16
SCC 1 : (2010) 4 SCC (Cri) 145] came to be
considered, the Bench comprised of two Judges, was of
the view that the said decisions required
reconsideration and directed that the matter be placed
before a larger Bench to consider the correctness of the
said three decisions. Shri Jain urged that as the same
issue which was involved in the present case was also
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WP.No.9124 of 2001the subject-matter of the reference to a larger Bench,
this Court should abstain from pronouncing judgment
on the issue which was the subject-matter in the said
reference. Shri Jain urged that in the circumstances
mentioned hereinabove, no relief could be given to the
petitioners on the writ petition and the same was liable
to be dismissed.
26. Furthermore, the issue, which has been
referred to a larger Bench in Gian Singh case [(2010)
15 SCC 118] in relation to the decisions of this Court
in B.S. Joshi case [(2003) 4 SCC 675 : 2003 SCC (Cri)
848] , Nikhil Merchant case [(2008) 9 SCC 677 :
(2008) 3 SCC (Cri) 858] , as also Manoj Sharma case
[(2008) 16 SCC 1 : (2010) 4 SCC (Cri) 145] , deals
with a situation which is different from that of the
present case. While in the cases referred to
hereinabove, the main question was whether the
offences which were not compoundable, under Section
320 CrPC could be quashed under Section 482 CrPC,
in Gian Singh case [(2010) 15 SCC 118] the Court was
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WP.No.9124 of 2001of the view that a non-compoundable offence could not
be compounded and that the courts should not try to
take over the function of Parliament or the executive.
In fact, in none of the cases referred to in Gian Singh
case [(2010) 15 SCC 118] , did this Court permit
compounding of non-compoundable offences. On the
other hand, upon taking various factors into
consideration, including the futility of continuing with
the criminal proceedings, this Court ultimately quashed
the same.
29. As was indicated in Harbhajan Singh case
[Harbhajan Singh v. State of Punjab, (2009) 13 SCC
608 : (2010) 1 SCC (Cri) 1135] , the pendency of a
reference to a larger Bench, does not mean that all
other proceedings involving the same issue would
remain stayed till a decision was rendered in the
reference. The reference made in Gian Singh case
[(2010) 15 SCC 118] need not, therefore, detain us.
Till such time as the decisions cited at the Bar are not
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modified or altered in any way, they continue to hold
the field.”
4(i) The learned Additional Solicitor General of India would
submit that the writ petitioner and his mother ignored the opportunities to
adduce any proof in support of their contention that the properties were
not illegally acquired. When the initial notice under Section 6(1) was
returned unserved on account of detenue not being available at the last
known address and during November 1996, the last date for personal
hearing, the Competent Authority made several attempts, even after the
disposal of the writ petition, to serve notice and give opportunities in
response to the notice for hearing. On 14.12.1990, a counsel
representing the detenue’s wife appeared but she did not bother to furnish
any information. Though notice was duly served on the detenue’s wife
and the writ petitioner, they ignored the same. In response to the last
notice for hearing prior to the order under Section 7 of SAFEMA, the
learned Counsel appearing on behalf of the petitioner stated that the
detenue’ was presumably dead. Thereafter, the writ petitioner herein and
his mother were impleaded as legal heirs. He would submit that the
detenue’s source of income were a pension of Rs.25/- p.m. to start with
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and going upto Rs.100/- per month and agricultural land to an extent of
3.81 acres of dry land allotted to him as his share of ancestral property in
1964. In the absence of any explanation of the sources of acquisition of
the properties, the Competent Authority ordered forfeiture of the
properties mentioned in the notice.
4 (ii) The petitioner failed to discharge the burden of proof as
required under Section 8 of the SAFEMA, either before the Competent
Authority or before the Appellate Tribunal. The sources for the
acquisition of the properties were stated to be “substantial terminal
benefits”received by the detenue on his retirement, though the amount
was not specified; income from agricultural land, which was not
quantified; the sale of jewellery and other valuables; and borrowings
which were also not quantified. The petitioner and his mother did not
proved that they had adequate legal sources with which the properties
were acquired, and therefore, the writ petition is liable to be dismissed.
5. We have considered the rival submissions made on either side
and perused the materials available on record.
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6. It is seen from the records before the Appellate Tribunal that
two appeals were filed by the wife and son of D.Veerappan, who was
detained under the provisions of COFEPOSA. The appeals were against
the order of the Competent Authority dated 16.12.1996, made under
Section 7(1) of Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976, whereby the agricultural lands and
house site were directed to be forfeited. The Competent Authority issued
a notice under Section 6(1) of the Act to the detenue. The notice was
returned unserved with an endorsement that the whereabouts of the
detenue was not known. A notice was again sent and was received by
the son of the detenue, who was represented by an advocate before the
Competent Authority and stated that the whereabouts of the detenue was
not known. In the meanwhile, the wife of the detenue filed WP.No.5340
of 1990 and the proceedings pending before the Competent Authority
were stayed until 26.11.1993, when the writ petition was disposed of.
The Competent Authority was directed to proceed with the enquiry.
7. It is not in dispute that the father of the writ petitioner
Thiru.D.Veerappan was detained by an order of detention dated
20.12.1974, under the provisions of COFEPOSA. By a notice dated
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18.02.1986, under Section 6(1) of SAFEMA, the said Veerappan was
called upon by the Competent Authority to show cause as to why the
three properties viz., agricultural lands measuring 1.60 acres and 1.31
acres situated in S.No.429/2, 429/17, 407/15 and 407/23 and a house site
measuring to an extent of 13 cents in S.No.397/3 with a tiled house
should not be confiscated under the Act, as these properties were
acquired out of funds generated from illegal activities viz., transactions
under Section 9(1)(b) and 9(1)(d) of the FERA. The said detenue
Veerappan, disappeared in the year 1985, and his whereabouts were not
known, therefore, the said notice under Section 6(1) of the Act could not
be served on him. It is on record that notice was affixed in the last
known address of the said Veerappan. By an order dated 16.12.1996, the
Competent Authority proceeded to forfeit the properties in terms of
Section 7 of the Act exparte. The writ petitioner and her mother
preferred an appeal in FPA.No.1 & 2/MDS/97 along with petitions in
MP.Nos.7 & 9/MDS/97 before the Appellate Tribunal. On 07.07.2000,
the Appellate Tribunal remanded the matter to the Competent Authority
with a direction to consider the documents and submissions made by the
writ petitioner and his mother and submit its findings thereon.
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8. It was their case that the properties, which are the subject matter
of the proceedings, were purchased even as early as in the years 1964,
1965 and 1973. It was also their case, that the first item of property was
purchased by the detenue vide registered sale deed dated 01.06.1964 for
a sale consideration of Rs.3,000/- out of which the detenue promised to
discharge a sum of Rs.1,500/- borrowed by the vendor under the sale
deed from the brother of the said Veerappan, and paid the balance sum
of Rs.1,500/- to the vendors, that too out of the agricultural income
derived from the ancestral agricultural lands. The third item of the
property was purchased in the year 1965 under the sale deed dated
09.06.1965, for the sale consideration of Rs.1,000/- only. The vendor of
the property had earlier borrowed a sum of Rs.500/- on 27.04.1965,
under a promissory note from the person affected / Veerappan, interest
on the said amount was worked out to Rs.12/-, an amount of Rs.512/-
was adjusted against the sale consideration and paid the balance sum of
Rs.498/- to the vendor. In respect of the second item of the property, the
person affected purchased the same by a Registered sale deed dated
02.05.1973, from one Kuppanna Gounder. The said Kuppanna Gounder
had earlier executed a promissory note in favour of one Chellammal and
had borrowed a sum of Rs.2,000/- from the said Chellammal on
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WP.No.9124 of 2001
24.01.1972, and interest on the same was worked out to Rs.300/-. The
person affected took over the said debt under the promissory note and
paid the balance amount of Rs.700/- towards the sale consideration under
the sale deed dated 02.05.1973. It was also their case that the
investments of the detenue in purchasing the properties which are the
subject matter of the proceedings, were only at Rs.7,000/- and less than
that.
9. The Competent Authority held that the person affected had
served and retired from the Indian Army in the year 1963 and was getting
a pension of Rs.25/- on retirement which in the course of to be increased
to pension to Rs.100/- per month. The person affected family of five
members (including himself) for maintenance. There is nothing on
record to indicate that the person affected after retirement from the Army
had engaged himself in any occupation for making an earning. It was
also held that in the course of the case proceedings, neither the person
affected nor his legal heirs have established that the person affected had
sufficient income to make investments in the immovable properties. As
against this financial background, the expenditure made by the person
affected for acquiring the properties put to notice had been to the extent
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of Rs.17,000/- which is grossly disproportionate to the known sources of
his income.”
10. The Competent Authority concluded that the writ petitioner
and her mother have failed to prove the relevancy of the documents and
the submissions made should establish the nature of the sources of
acquisition.
11. On the submissions made regarding the sources for acquiring
the properties ordered to be forfeited, the findings of the Appellate
Authority in paragraph 16 (a) to (c) are follows :-
“(a) During personal hearing held on 7,07.2000
the learned counsel contended that the detenu had
acquired the first property 1.60 acres of agricultural
land from one Ramasamy, by the sale deed
No.1292/1964 dated 01.06.1964 for Rs 3000/- ; Rs
1500/- was paid to Ramaswamy and the balance was
paid to the detenu’s brother towards the discharge of a
promissory note. However on two counts the Competent
Authority found the transaction suspect. The sale deed
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WP.No.9124 of 2001did not include plot in survey No.429/4, one of the 14
plots which totalled upto 1.60 acres, Secondly, as
against the contention during personal hearing on
8.12.2000 that Rs 1500/- was paid to Ramasamy on
13.6.1964, as per the sale deed the amount was paid on
1.6.1964 itself in pursuance of the Registrar. Regarding
the sources of Rs.3000/- no concrete evidence was
furnished. The promissory notes filed in support of the
contention that the appellant borrowed the sums from
1954 to 1981 do not prove the utilisation of the loans
for the purchase of the land. The nearest loan prior to
the date of purchase was on 10.10.63 and that too for
Rs 200/- only for the purpose of family expenses, as per
the narration given in the pronote. The claims of Smt.
Kaliammal in her affidavit dated 24.7.2000 that the
detenu had substantial income from agricultural land
and had income from livestock also remained
unquantified and unsubstantiated.
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(b) The second property, 1.31 acres of
agricultural land, was purchased on 2.5.73 from one
Karuppana Goundar for Rs 3000-; Rs 700/- was to be
paid to the owner and Rs 2300/- was to be paid to one
Chellamnal from whom Nuruppana had borrowed on a
promissory note. The total area of land indicted in the
sale deed (1.43 acres) is more than the area forfeited.
The sources of investment could not be proved. The
amount of Rs.700/- was claimed to have been paid
through borrowed sources. However, the promissory
notes produced in support of the contention that the
detenu had been borrowing for purchasing land could
not prove anything. These promissory note indicated
that the borrowing were for urgent family needs. The
nearest date of promissory note prior to the date of
purchase was 7.5.1969, that is four years earlier and
the nearest note after the date of purchase is 11.10.73.
Moreover, it was claimed before the Competent
Authority that the amount of Rs.2300/- was still
outstanding but, no documentary proof was produced
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despite an undertaking of the counsel on 8.12.2000 to
do so within ten days.
(c) The third property, 13 cents of land with a
tiled house, was claimed to have been purchased on
9.6.1965 from one Palaniandi Gounder for Rs 1000/-. It
was further claimed that the detenu had paid Rs 488/-
in cash out of income of Rs.1200/- between January
1965 to June 1965 and the balance was adjusted
against loan due from the seller. However, no
documentary evidence, apart from mere claim, was
furnished to substantiate that the detenu had legal
earnings during the said period.”
12. Regarding the facts, the learned Additional Solicitor General of
India referred to several paragraphs in the orders impugned passed by the
Competent Authority and the Appellate Tribunal. The Competent
Authority elaborately considered the facts with reference to the
documents and evidences available on record.
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13. With regard to the guidelines issued by the Government of
India dated 23rd June 1994, plain reading of the circular would amplify
that it is only guidelines issued to the competent authorities to take
decisions, whether further actions are to be initiated in respect of the
cases, wherein the value of property falls below one lakh. Paragraph 4 of
the guidelines clarifies that “These instructions are in the nature of
guidelines only and are being issued with a view to enable the competent
authorities and all the officers working with them to concentrate more on
bringing to book economic offenders with substantial proportion instead
of spending their time and energy in handling small cases”.
14. Such circulars are unenforceable in respect of all cases, as the
guidelines are issued to the officials to take decisions. In the absence of
statutory backing, mere guidelines issued by the department for the
officials cannot be a ground to seek exoneration from the provisions of
the Act. The Act will prevail over. When there is no specific or express
exemption under any of the provisions of the Act, the guidelines will not
confer any right or to be construed as enforceable for the purpose of
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dropping further actions initiated under the SAFEMA.
15. We are of the considered opinion that the procedures as
contemplated under Sections 6(1) and 7(1) were complied with by the
authorities. Under Section 8 of SAFEMA, the burden of proof lies on the
affected person. In the present cases, neither the affected person nor his
legal heirs, including his wife and the petitioner herein failed to
discharge the burden which resulted in forfeiting the properties under the
provisions of SAFEMA. At this juncture, it is relevant to read Section
15 of the Act :-
5. Competent authority and Appellate Tribunal
to have powers of civil court.—The competent authority
and the Appellate Tribunal shall have all the powers of a
civil court while trying a suit under the Code of Civil
Procedure, 1908 (5 of 1908), in respect of the following
matters, namely:—
(a) summoning and enforcing the attendance of
any person and examining him on oath;
(b) requiring the discovery and production of
documents;
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26
WP.No.9124 of 2001
(c) receiving evidence or affidavits;
(d) requisitioning any public record or copy
thereof from any court or office;
(e) issuing commissions for examination of
witnesses or documents;
(f) any other matter which may be prescribed.”
16. It is pertinent to mention that the Competent Authority has
reason to believe that all (or) any properties are illegally acquired as
defined under Section 3(1)(c) of the Act, a notice under Section 6(1) or
6(2) issued as the case may be, or material available to it as a result of
action taken under Section 18 (or) otherwise. We are of the opinion that
an order passed under Section 7, sub section (1) of the Section 9 or
Section 10 after following the above procedures contemplated under this
Act is equal to passing a decree or judgment in a Civil Suit. Equally an
appeal filed before the Appellate Tribunal under Section 12(4) of
SAFEMA and an order passed by the Appellate Tribunal is equal to first
appeal. Therefore, the Competent Authority and the Appellate Tribunal
are fact finding authorities. In the present case on hand there is a
concurrent findings on factual aspects.
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WP.No.9124 of 2001
17. A complete analysis of the facts recorded by the Competent
Authority and the Appellate Tribunal would be sufficient to form an
irresistible conclusion that there is no further reason to interfere with the
orders impugned.
18. The power of judicial review of the High Court under Article
226 of the Constitution of India is to ensure the processes through which
a decision has been taken by the Competent Authority in consonance
with the Statutes and Rules in force, without any perversity but not the
decision itself. However, in the present cases, we have considered the
factual findings of the Competent Authority and Appellate Authority, as
well as the grounds raised between the parties.
19. In fine, we do not find any infirmity in respect of the actions
taken, and consequently, the impugned orders are confirmed. The writ
petition stands dismissed. There shall be no order as to costs.
(S.M.S., J.) (M.J.R., J.)
28.01.2025.
tsh
Index : Yes / No
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WP.No.9124 of 2001
Internet : Yes / No
Neutral Citation: Yes / No
To
Competent Authority
SAFEM (FOP) A & NDPS Acts
Govt of India, Ministry of Finance,
Department of Revenue
64/2, “Utsav” G.N.Chetty Street, Chennai.
2.The Registrar
Appellate Tribunal for Forfeited property
Khan Market,
Lok Nayak Bhavan, 4th Floor
New Delhi – 110 003.
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29
WP.No.9124 of 2001
S.M.SUBRAMANIAM.J,
and
M.JOTHIRAMAN.J,
tsh
Pre-Delivery Order in
W.P.No.9124 of 2001
28.01.2025.
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30
