Dismissed

FPA-16/MDS/2012 of M. Ummar v/s The Competent Authority, Chennai

ATFP18 Apr 2017FPA-16/MDS/2012

Case brief

AI extract

What is this about?

The Appellate Tribunal for Forfeited Property addressed an application for condonation of delay in filing an appeal against a 1995 forfeiture order under SAFEMA. The tribunal rejected the condonation claim, holding the appellant was aware of the proceedings during prior civil litigation and that the statutory limitation cannot be relaxed for such a significant lapse.

What did the court decide?

Condonation of delay application dismissed; appeal and stay application dismissed as barred by time.

FPA-16/MDS/2012 of M. Ummar v/s The… — Constitutional and Fundamental Rights | ATFP (2017)

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APPELLATE TRIBUNAL FOR FORFEITED PROPERTY NEW DELHI

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Date of Decision: 18.04.2017

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MP-135/MDS/2017 (COD) MP-20/MDS/2012 (Stay) &

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FPA-16/MDS/2012

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M. Ummar … Appellant/Applicant

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Versus

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The Competent Authority, Chennai

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… Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant : Shri Shaijan C. George, Advocate For the respondent : Shri Ashok Kumar Srivastava, Joint Commissioner Shri L. Christopher Vasanth, Inspecting Officer

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CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SHRI KAUSHAL SRIVASTAVA	: MEMBER
SHRI ANAND KISHORE	: MEMBER

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MP-135/MDS/2017 (COD)

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The present application has been filed for Condonation of Delay of

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6186 days in the filing of the appeal.

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As per facts available on record, it is observed that the order of the Competent Authority had been passed on 30/06/1995 and the appeal before this Tribunal ought to have been filed within 45 days i.e. on or before 14^th August, 1995. In the instant case the appeal has been filed on 26/07/2012, i.e., after a delay of 6186 days.

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In its affidavit dated 28^th March, 2013 the Appellant has stated as under:-

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FPA-16/MDS/2012

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Page 1 of 14

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a. The Appeal preferred by me is challenging the impugned order of the Competent Authority OCA/MPS/26443/87 dated 30/06/1995. Normally, the appeal has to be filed within 45 days i.e. on or before 14/08/1995. But, myself or my vendor were not the parties to the proceedings initiated by the competent authority. My vendor had not been served with any notice as regards to the proceedings in question. He was not aware about the pendency of the proceedings or the order issued by the competent authority in this regard. The registering authority of the property was also not aware about any impediment as regards to the transfer of property as regards to the property owned by my vendor. Without the knowledge of the impugned order, my vendor had made the sale and I had purchased the property in question on 02/06/1998. I came to know about the proceedings only when I have received the notice under section 11 and 19(1) of SAFEMA dated 19/08/2008. Immediately I have approached the Civil Court by filing OS No. 21/2006 before the Hon‟ble Sub Court, Kasaragod to uphold my legal rights. When the judgment of the Hon‟ble Sub Court turned against me, I had approached the Hon‟ble District Court, Kasaragod by filing an appeal as AS No. 49/2008. The appeal was also turned against me and hence I had approached the Hon‟ble High Court of Kerala by filing RSA No. 500/2011. But, it was also turned against me and the Second Appeal was also dismissed. Then I had submitted a Special Leave Petition before the Hon‟ble Supreme Court which is numbered as SLP No. ……/2012, CC 6185/2012. When the case was listed for admission, the Hon‟ble Supreme Court was pleased to dispose of the Special Leave Petition as follows:

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FPA-16/MDS/2012

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Page 2 of 14

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“Ms. Bindu K. Nair, learned counsel for the petitioner, submits that the petitioner intends to approach the appellate authority under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short, „SAFEMA‟). However, the findings recorded by the High Court may operate against the petitioner in that event.

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We have perused the judgment of the High Court. The High Court has noted that the question whether the property is that of the offender and is liable or not, whether that property was acquired by the offender and is liable for forfeiture are all matters to be decided by the competent authority and an appeal is provided before the Appellate Tribunal by an aggrieved person. The High Court has further observed that if the case of the appellant is that the property which has been forfeited under Section 7 by Ext. B7 order is not the property of the offender, he has a right to prefer an appeal as provided under Section 12(4).

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Since the petitioner is desirous of filing statutory appeal provided under Section 12(4) of SAFEMA, we observe that the observations made by the High Court in the impugned order shall not operate against the petitioner in consideration of the appeal by the appellate authority on merits.

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With the above observations, special leave petition is disposed of.”

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It was disposed on 16/04/2012.

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b. After the judgment of the Supreme Court, with an intention to obtain certified copy of the impugned judgment, I had submitted a request to the Competent Authority, Chennai, to furnish certified copy of the impugned judgment along with other connected documents. But the learned Competent Authority was not inclined to furnish certified copies as requested. Since the furnishing of the certified copy of the order is a pre-requisite in filing appeal against such order, I had to approach the Hon‟ble High Court by filing Writ Petition WP(C) No. 14885/2012 to get a direction to the Competent Authority, to serve the certified copies requested. The Hon‟ble High Court of Kerala in WP(C) No. 14885/2012 had on 26/06/2012 ordered the Competent Authority, Chennai to furnish the certified copy of the documents requested

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FPA-16/MDS/2012

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Page 3 of 14

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including the impugned order. True copy of the judgment of the Hon‟ble High Court of Kerala dated 26/06/2012 in WP(C) No. 14885/2012 is produced herewith. Pursuant to the above said order, the Competent Authority had served certified copy of the impugned order on 13/07/2012, I had submitted the appeal before this Hon‟ble Tribunal on 26/07/2012, which is within the limitation period of 45 days.

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c. However, there is a technical delay of 6186 days when calculated from 30/06/1995, the date of the impugned order. But Sub-Section 4 of Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976 provides that “Any person aggrieved by an order of the competent authority made under section 7, sub-section (1) of section 9 or section 10, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal”. In this case, I am served with the certified copy of the impugned order as per the direction of the Hon‟ble High Court of Kerala only on 13/7/2012. So it has to be construed that there is no delay, since I have filed the appeal on 26/7/2012. So, the technical delay of 6186 days in filing the appeal may be condoned in above said circumstances and in the interest of justice. I am filing a separate petition to condone the delay that may be allowed.

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During the course of hearing, the Appellant has reiterated the same reasons for the delay in filing the instant appeal in its petition for condonation of delay.

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FPA-16/MDS/2012

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Page 4 of 14

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The Respondent has vehemently objected to the Appellant‟s petition for Condonation of Delay and vide the written submissions dated 10^th April, 2013 made the following submissions:-

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“ It is submitted that the present appeal has been filed by Shri. M. Ummar, a third party purchaser of forfeited property. As per the scheme of the Act, Shri M. Ummar cannot be said to be a „person aggrieved‟ who can file appeal before the Hon‟ble ATFP. The appellant is not a person on whom any order under Section 7 or Section 9(1) or Section 10 was made to qualify him to prefer an appeal as envisaged under Section 12(4) of SAFEMA. He was served with an order only under Section 19(1) for the purpose of taking possession of the forfeited property from him which is not appealable under Section 12(4) of the Act. Thus, he has no locus standi to file the appeal.

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Assuming but not accepting that he can be an appellant, consequent to the orders of the Hon‟ble Supreme Court and the Hon‟ble High Court of Kerala, still the restrictions regarding the time limit provided under proviso to Section 12(4) under SAFEMA will be applicable to persons seeking to prefer appeal. Viewed in that context, by the appellant‟s own admission there is a delay of 6186 days from the date of order. The order was served on 30.06.1998. The said order was served on Shri Mohammad Kunhi, S/o Shri Zainuddin residing at Katakkal House, Kalnad P.O. Kasaragod Dist. on 30.06.1998 as evidenced by the acknowledgement by the service and the letter dated 02.07.1998 of the Income Tax Officer Ward 1, Kasaragod.

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The appellant claims that he purchased the property from Shri K.A. Zainuddin. The said transfer is said to have occurred on 19.06.1998. The appellant claims that vendor K.A. Zainuddin

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FPA-16/MDS/2012

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Page 5 of 14

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“purchased the above land not by any illegally acquired wealth. He had direct source to purchase the land in question as he had sold the property held by him on 30.03.1998 for an amount of Rs.30,000/-. He had purchased this property during the year 1943. There are clear records for the source for the purchase of the property in question by my vendor”. The appellant claims personal knowledge about the income earning capacity of the said K.A. Zainuddin and its legality. When he makes such averment before the Hon‟ble Tribunal, it should be based on personal knowledge. If it is not based on personal knowledge the source of information should be clearly deposed, as held by the Hon‟ble Supreme Court in the case of State of Bombay Vz Purushotham Jog, AIR 1952 SC. In this case the appellant has not clarified whether he is making out of personal knowledge or based on information available to him by disclosing the source of information. Affidavit must be either affirmed as true to knowledge, or from information received provided the source of information is disclosed, as to what the deponent believes to be true provided the grounds for such belief are stated. Such affidavits where the verification lacks the essential requirements are valueless. (Law of Affidavits by Shri S. Parameswaran, Page 51 Year 2013 Universal Law Publishing Co.). Thus, the affidavit suffers from lack of value and deserves to be ignored.

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Further, the falsehood in the affidavit is apparent since the sale proceeds of the property for Rs. 30,000/- per month 30.3.1998 is attributed to be the source of funds for purchase of land on 21.4.1981. He claims ignorance of the proceedings against the person affected under SAFEMA alleged to have been a resident in the property. But he is able to come forward with so much details almost like the work of an Investigation Authority about matters happening in 1943. Hence, none of the averment in the affidavit have any semblance of credibility. The

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FPA-16/MDS/2012

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Page 6 of 14

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appellant‟s claim that without knowing any proceedings he happened to purchase bonafidely the above said property is nothing but utter falsehood. The appellant‟s allegation that the Competent Authority has neither conducted proper enquiry nor issued notice to his vendor is without any basis.

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The appellant claims that either himself or his vendor were not the parties to the proceedings initiated by the Competent Authority. His vendor had not been served with any notice as regard the proceedings in question. He was not aware of the pendency of the proceedings or orders issued by the Competent Authority in this regard. Making similar claims before the subordinate judge of Kasaragod he filed a suit and the same was dismissed with the clear cut observation “under these circumstances the contention of the plaintiff that person against whom proceeding was initiated under the Act was the resident of Hosdurg Village cannot be accepted without producing cogent evidence. The plaintiff has not produced any evidence to show that such person is or was residing in Hosdurg taluk or no any other village. Ext. B1 to B13 clearly show that a person against whom proceeding was initiated was a resident in the house in the plaint A schedule property and not a different person”. It further observed “besides this during cross examination at page 2 of the desposition of PW1 (plaintiff) has admitted that K.A. Zainuddin and Kunnaruvath Zainuddin are one and the same person and page No.3 he states that said Zainuddin was at Bombay. The provisions under the Act do not contemplate any notice to the transferee. Hence, the contention that no notice was issued on the plaintiff is without any merit”.

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The district judge Kasaragod in suit No.49 of 2008 vide order dated 28.10.2010 also held that the appellant has admitted that K.A. Zainuddin and Zainuddin Kunnaruvath are one and the same person

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FPA-16/MDS/2012

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Page 7 of 14

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and held that the appellant has purchased the property from Mohd. Zainuddin whose properties were attached by Competent Authority. The appellant has not acquired any title over the property as claimed by him and he is not entitled to a declaration or any consequential injuction as prayed for.

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The appellant refers to the order of the Hon‟ble Supreme Court. The Hon‟ble Supreme Court also held that the petitioner is desirous of filing statutory appeal providing under Section 12(4) of SAFEMA. The Supreme Court has not examined the admissibility of the appeal under Section 12(4) since the appellant is a person aggrieved against the order under the provisions of Section 19(1) of the Act and not against any order under Section 7/9(1)/10 of SAFEMA.

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It was also observed by the Hon‟ble Supreme Court that the observations made by the Hon‟ble High Court in the impugned order shall not operate against the petitioner in consideration of the appeal by the Appellate Authority on merits. Thus, the restriction is only to the observations of the Hon‟ble High Court and not to the judgments of the District Court and the Subordinate Judge, Kasaragod. Both the courts have examined the same issue and the matter directly and substantially in issue has been heard and finally decided.

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The competency (jurisdiction) of those courts to try/entertain a suit when alternative remedy is available in the form of appeal before the ATFP has been well addressed by the Subordinate Judge observing that “aggrieved persons can certainly approach the Civil Court to redress his grievance, if the plaintiff succeeds in providing that the property never belonged to the person against whom the proceedings was initiated and that the person and the vendor are different persons. “If the plaintiff

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FPA-16/MDS/2012

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Page 8 of 14

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succeeds in proving the same, order passed will be in violation of the provisions of law as much as the proceeding will be against the property of a stranger”.

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The findings of the District Judge, Kasaragod bring a finality to the matter under consideration in the following words: “According to him (appellant) his vendor‟s name is K.A. Zainuddin and he is a different person. He has also gone to the extent of saying that the vendor K.A. Zainuddin is no more and that Mohammed Zainuddin Kunnariyath was residing in Hosdurg taluk and not in kalnad village. However, the appellant has not furnished the details of the person who is the real offender, even though he has stated that the offender is known to him and is residing somewhere else. It can be seen that notice Ext. B6 was served on the wife of the offender namely Mohammed Zainuddin Kunnaryiath. The said notice was received from House No. XI/540A of Chemnad Panchayath in Kalnad Village. As per Ext. B8 order of Competent Authority, proceedings was against the person residing at Kanakkal House, P.P. Kalnad. So the contention of appellant that person against whom proceeding was initiated under the Act was the resident Hosdurg Village cannot be accepted, without producing acceptable evidence, especially, when the appellant has contended that the person against whom proceeding was initiated is still alive and he knows him. But, he failed to furnish the address of that person. Further, in the evidence of PW1, the appellant has admitted that K.A. Zainuddin and Zainuddin Kunariyath are one and the same person. PW1 at page No. 2 of his disposition has stated that he has not produced any document to show that Kunnaruvath Zainuddin and K.A. Zainuddin are separate person. In his own words “it is true that K.A. Zainuddin and Kunnaruvath Zainuddin are one and the same person”. On going through the entire evidence on record it can be seen that proceeding was

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FPA-16/MDS/2012

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Page 9 of 14

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initiated by the authorities against Muhammed Zainuddin residing at Kunnarivath House. So, it is clear that Kunnarivath Muhammed Zainuddin and K.A Zainuddin are one and the same person. If that be so, it has to be held that the appellant has purchased the plain schedule property from Mohammed Zainuddin, whose properties were attached by Competent Authority Act 13 of 1976. The property belonged to Mohammed Zainuddin was forfeited as early as 30.06.1995. Ext. A2 is dated 2.6.1998. It was as per Ext. A2, the appellant came into possession of plaint A schedule property.

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In view of the above clear cut findings, even while keeping aside the findings of the Hon‟ble High Court of Kerala, as per the directions of the Hon‟ble Supreme Court, any further appeal and consequently any further proceedings are against the provisions of Section 11 of Civil Procedure Court involving the principles of res judicata particularly the doctrine of Interest republicae et sit finis litium (litigation should not be protracted but must be finished once for all) and the doctrine of Nemo debut bis vexari prouna et eadem causa (no man should be sued twice for the same cause of action). Hence if the appeal is admitted it would tantamount to abuse of the judicial proceedings.

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Having fought the same matter in issue before both the Civil Courts having the authority to decide the identity of person, the petitioner is trying to litigate settled issues by means of frivolous and vexatious petitions before the Hon‟ble Tribunal. Hence, it is strongly pleaded that the appeal may be dismissed on the grounds of being belated and violating the principles of res judicata .”

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During the hearing, the Respondent also drew attention to the judgment dated 29.02.2008 of the Subordinate Judge, Kasaragod in

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FPA-16/MDS/2012

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Page 10 of 14

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Original Suit No. 21 of 2006 (Page 10-29 of the Paper Book) and mentioned that the Exhibits marked for Defendants at B6 and B7 forming part of the said judgment clearly indicated that at the time of the proceedings in the said Suit, the Appellant was/became aware of the proceedings in relation to the subject property before the Competent Authority under SAFEMA. The said exhibits are as under:

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B6 11.5.1987 : Notice under Section 6(1) of the SAFEM (FOP) Act, 1976 issued by the competent authority, SAFEM (FOP), Chennai.

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B7 30.06.1995 : Proceedings of the Competent Authority, SAFEM (FOP) Madras against Shri. Mohammed Zainuddin

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On the basis of the above, it was argued that even if the appellant was not part of the proceedings in relation to the subject property under SAFEMA earlier, in any case, during the proceedings of the Original Suit no. 21 of 2006 before the Subordinate Judge, Kasaragod, the appellant was/became aware of the forfeiture of the related property by the order dated 30.06.1995 of the competent authority. However, if he was aggrieved with the order, instead of filing the statutory appeal under SAFEMA against the said order even at that stage and/or taking steps in that regard, the appellant chose to pursue the remedy before the learned Subordinate Judge and thereafter by way of successive appeals before the Hon‟ble District Judge and onward. In these circumstances, at this belated stage of several years, the appellant could not plead for condonation of delay in filing appeal before this Tribunal after exhausting his remedy on that side. It was therefore strongly pleaded that the condonation application be disallowed and appeal be rejected as time barred.

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The appellant‟s contention is that neither he nor his vendor were parties to the proceedings initiated by the Competent Authority culminating with the forfeiture order dated 30.06.1995, and that the vendor had made the sale and the Appellant had purchased the property FPA-16/MDS/2012 Page 11 of 14

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in question on 02.06.1998 and therefore such sale/acquisition could not be faulted. However the issue to be considered first is regarding the condonation of delay in filing the present appeal. The present appeal is filed against the impugned order dated 30.06.1995 and has been filed on 26^th July, 2012. It is contended that the certified copy of the order has been provided to the appellant/applicant by the Competent Authority only on 13.07.2012 and he had filed the appeal thereafter on 26.07.2012 which was within the permitted period of 45 days from service of the order on him. According to the appellant/applicant, there was only a technical delay of 6186 days in filing the appeal when calculated from 30.06.1995, the date of the impugned order and in the facts and circumstances in the case, the delay ought to be condoned.

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In this connection, it is observed that as per the proviso to sub section 4 of section 12 of SAFEMA, the Appellate Tribunal is competent to entertain appeals after the normal period of 45 days for filling appeal for upto a further period of 15 days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. It is settled law that Appellate Tribunals being a creation of the statute are bound by the respective statutes in matters of limitation. This Appellate Tribunal being created under the SAFEMA is bound by the provisions of the said Act and therefore, cannot condone the delay of 6186 days in filing the appeal beyond the permitted time.

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While on the subject, we have also examined the matter from the aspect whether the appellant was prevented by sufficient cause for filing the appeal in time. The appellant has contended that the present appeal has been filed after having been permitted by the Hon‟ble Supreme Court to file the statutory appeal as provided under Section 12 of SAFEMA and that it had also been observed by the Hon‟ble Supreme Court that the observations made by the High Court in the impugned order (of the High Court) shall not operate against the petitioner in consideration of the

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FPA-16/MDS/2012

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Page 12 of 14

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appeal by the Appellate Authority on merits. It is noteworthy that the Hon‟ble Supreme Court has no where directed that the appeal should be considered by the Appellate Authority without regard to the stipulation provided under the statute for filing of appeals. Also, we find that there is nothing in the order of the Hon‟ble Supreme Court from which it could be inferred that the Hon‟ble Court had condoned the delay.

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Moreover, from the discussion herein above, it is seen that in the proceedings in the Original Suit No. 21/2006 before the learned Subordinate Judge, Kasaragod which culminated with its order dated 20.02.2008 (Page10-29 of the Paper Book), the appellant was/became aware of the forfeiture of the related property to the Central Government under the provisions of SAFEMA. This is clear from the Exhibits B 6 and B 7 taken on record during the proceedings which is clearly borne out from the order dated 20.02.2008 of the learned Subordinate Judge, Kesaragod. Further a perusal of the facts on record also shows that subsequently copy of the order dated 19.09.2008 under Section 11 and 19 (1) of SAFEMA passed by the Competent Authority (Page30-32 of the Paper Book) nullifying the alienation of the subject property in favour of the appellant and directing him to hand over possession of the forfeited property to the authorised officer was also endorsed to the appellant and admittedly received by him sometime thereafter.

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From the discussion above, it is evident that the Appellant instead of filing the Appeal in this Tribunal against the forfeiture order dated 03.06.1995 under Section 7 of the Act at the earliest stage when he became aware of such order during the course of the proceedings in the Original Suit No. 21/2006 before the learned Subordinate Judge, Kasaragod or later on receipt of the order dated 19.09.2008 passed by the Competent Authority under Section 11 and 19(1) of the Act which was also admittedly received by him at that time, preferred to file a Civil Suit FPA-16/MDS/2012 Page 13 of 14

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in the Office of the Subordinate Judge, Kasaragod and pursued his remedy on that side by way of successive appeals before the Hon‟ble District Judge, Hon‟ble Kerala High Court, Single Bench, Hon‟ble Kerala High Court, Division Bench of the Hon‟ble Kerala High Court and on being negated at each stage, it is only at the stage of the appeal before the Hon‟ble Supreme Court that the appellant expressed a desire to file the statutory appeal. As already noted above, the Hon‟ble Supreme Court order does not provide for condonation of delay in filing the statutory appeal. As such, the reasons given by the Appellant for the delay in filing the Appeal do not merit consideration and, accordingly, we are of the view that the said delay of 6186 days cannot be condoned. The application for condonation of delay is, therefore, dismissed.

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FPA-16/MDS/2012 & MP-20/MDS/2012 (Stay)

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The Appeal of the Appellant is barred by time. The Application for condonation for delay in filing the Appeal has already been dismissed. Therefore, the Appeal and Application for stay are dismissed as barred by time.

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(Justice Manmohan Singh) Chairman

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(Kaushal Srivastava) Member

(Anand Kishore)

Member

New Delhi,

18^th April, 2017