Tenants challenged eviction from property forfeited under SAFEMA to the Central Government. The Tribunal held their appeals not maintainable as Section 19 is not appealable and the forfeiture order had become final.
Appeals dismissed as not maintainable under SAFEMA.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
APPELLATE TRIBUNAL FOR FORFEITED PROPERTY NEW DELHI
Date of Decision: 11 .01.2017
| MP-80/BOM/2015 (Stay) FPA-23/MUM/2015 |
||
|---|---|---|
| Mansoor Taherali Mister Versus |
… | Applicant/Appellant |
| The Competent Authority, Mumbai | … | Respondent |
| MP-81/BOM/2015 (Stay) FPA-24/MUM/2015 |
||
| Sayyed Rafique Husain | … | Applicant/Appellant |
| Versus | ||
| The Competent Authority, Mumbai | … | Respondent |
| MP-82/BOM/2015 (Stay) FPA-25/MUM/2015 |
||
| Hajiani Mariam Bai Jaji Kasam | … | Applicant/Appellant |
| Versus | ||
| The Competent Authority, Mumbai | … | Respondent |
| MP-83/BOM/2015 (Stay) FPA-26/MUM/2015 |
||
| Ali Asgar Qaizar Bookwala | … | Applicant/Appellant |
| Versus | ||
| The Competent Authority, Mumbai | … | Respondent |
| MP-84/BOM/2015 (Stay) FPA-27/MUM/2015 |
||
| FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015 | Page 1 of 30 |
Ali Asgar Qaizar Bookwala … Applicant/Appellant Versus The Competent Authority, Mumbai … Respondent MP-85/BOM/2015 (Stay) FPA-28/MUM/2015 Sayed Anees Abbas … Applicant/Appellant Versus The Competent Authority, Mumbai … Respondent MP-86/BOM/2015 (Stay) FPA-29/MUM/2015 Farhad Mohd. Basheer Hameed … Applicant/Appellant Versus The Competent Authority, Mumbai … Respondent MP-87/BOM/2015 (Stay) FPA-30/MUM/2015 Mrs. Qamar Sultana Suhai Kazi … Applicant/Appellant Versus The Competent Authority, Mumbai … Respondent MP-88/BOM/2015 (Stay) FPA-31/MUM/2015 Sohail Manoor Ahmed Kazi … Applicant/Appellant Versus The Competent Authority, Mumbai … Respondent MP-89/BOM/2015 (Stay) FPA-32/MUM/2015 Farida Shabbir Bookwala … Applicant/Appellant Versus The Competent Authority, Mumbai … Respondent FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015 Page 2 of 30
Advocates/Authorized Representatives who appeared
| For the appellants | : Shri Sherali S. Khan, Advocate |
|---|---|
| For the respondent | : Shri R.N. D‟souza, Joint Commissioner |
| CORAM | |
| JUSTICE MANMOHAN SINGH | : CHAIRMAN |
| SHRI KAUSHAL SRIVASTAVA | : MEMBER |
| SHRI ANAND KISHORE | : MEMBER |
The subject ten (10) appeals arise out of the order dated 28.03.2005 passed by the Competent Authority, Mumbai under Section 7 and 19 of SAFEMA forfeiting the related property to the Central Government free from all encumbrances and directing the persons in occupation of the same to surrender or deliver vacant possession of the same to the authorized officer of the Competent Authority. The main point arising for consideration in these appeals is as to whether a party claiming to be a tenant whose rights are allegedly protected under the Rent Control Act applicable to a particular state can also claim protection from eviction/dispossession if the property occupied by him/her stands forfeited to the Central Government free from all encumbrances under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The appeals also involve the question whether an appeal to the Appellate Tribunal under SAFEMA in respect of orders/action under Section 19 of the SAFEMA to take over possession of such forfeited properties is maintainable in accordance with the provisions of the Act.
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convenience and brevity, the relevant facts in respect of the appeals will be referred from the Appeal no. FPA-23/MUM/2015 (Mansoor Taher Ali Mister).
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28.03.2005 passed by the Competent Authority, SAFEMA, Mumbai was also attached.
4.1 From the facts emerging from the impugned order dated 28.03.2005, it appears that a detention order was passed against one Dawood Ibrahim Sheikh under Section 3 (1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity sake hereinafter referred to as „COFEPOSA‟ 1974). The said detention order has neither been revoked by Government nor quashed or set aside by any Court of competent jurisdiction. Therefore, Shri Dawood Ibrahim Shaikh is an „affected person‟ (hereinafter also referred to as AP or as Dawood for short) under provisions of Section 2(2) (b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as SAFEMA). Shri Dawood Ibrahim Shaikh has also been declared as an absconder under subsection 1 of Section 7 of COFEPOSA, 1974 vide order dated 17.05.1993 of the Government of Maharashtra, Home Department (Spl).
4.2 A show cause notice dated 14.12.2001 was issued under Section 6(1) of SAFEMA, calling upon the AP/Dawood to indicate the sources of his income, earnings, or assets out of which or by means of which he has acquired the said property the evidence on which he relies and other information and particulars and to show cause as to why the aforesaid property should not be declared to be illegally acquired property in terms of the Act and forfeited to the Central Government free from all encumbrances.
4.3 The Show Cause Notice dated 14.12.2001 was was served on Dawood Ibrahim Sheikh in accordance with the provisions of section 22 of SAFEMA by affixing it at the address where the AP had last resided, vide panchanama dated 21.02.2002. A copy of the show cause notice was also served on Smt Hasina Ibrahim Kaskar, the sister of AP, who was holding the property on
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behalf of the AP vide the Competent Authority letter dated 29.07.2002 under the provision of Section 6(2) of the Act.
4.4 Reply to the show cause notice was received from Smt. Hasina Ibrahim Parkar vide letter dated 12th November 2002 forwarded through Shri P.M. Rustam Khan, Advocate. Further, Shri P.M. Rustam Khan, Advocate appeared for personal hearing on 23.07.2003 on behalf of Smt. Hasina Ibrahim Parkar and sought one month time for submitting all the relevant documents showing the title of the property and the source for acquisition of the property. His request was acceded to and the matter was adjourned to 27.08.2003. Thereafter, on the request of the Id. Advocate the matter was adjourned on a number of occasions to 5.09.2003, 19.09.2003, 15.10.2003,18.03.2004 and finally to 16.03.2005 On 16.03.2005, the Id. Advocate Shri P. Rustam Khan appeared for personal hearing and he under took to submit all the submissions and documents by 6 pm on that day.
4.5 The Competent Authority at Mumbai after considering the submissions made and the documents submitted passed the impugned order No. 41/SAFEMA/MUM/2005 dated 28.03.2005 by which the property in question viz. building/structure at 24, Shabnam Guest House, Yakoob Street, Mumbai 400009 was forfeited to the Central Government free from all encumbrances. The affected persons were also called upon to handover peaceful and vacant possession of the property to the Competent Authority within 30 days from the service of the order.
4.6 The said order dated 28.03.2005 was challenged by Smt. Hasina Ibrahim Parkar before this Tribunal in the appeal FPA No. 13/BOM/2005. On her death, she was substituted by her legal heirs. Because of the act of the parties in expressing the desire not to continue with the appeal and to withdraw the
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same, the appeal was dismissed as withdrawn vide the Tribunals order dated 03.02.2015 and the order dated 28.03.2005 of forfeiture of the said property became final. This led to service of the notice dated 28th August, 2005 to the appellant from the Competent Authority at Mumbai to surrender peacefully the vacant possession of the shop/room to the Inspecting Officer, SAFEMA Mumbai within 30 days of the letter/notice.
4.7 As per the appellant, the said impugned order dated 28.03.2005 is perverse, bad in law, illogical and unenforceable against the Appellant. Aggrieved by the aforesaid impugned Order dated 28.03.2005 of the said Authority, the appellant filed the present appeal in respect of the property occupied by him in the said Shabnam Guest House before this Hon‟ble Tribunal, inter-alia , on the following grounds.
III. The said Impugned Order of the Competent Authority is bad in law as being opposed to all principles of natural justice and fair play and is being sought to be enforced against the Appellant/a person who has not violated any provisions of any law enforceable.
IV. The Competent Authority was aware that the property, that was to be confiscated was occupied by tenants, whose rights are to be taken away by an order, which the Competent Authority
has decided to pass, in such circumstances, it was necessary
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for the Competent Authority to have included the Tenants as necessary parties to the said proceedings in order to give them a full opportunity to express their rights in the said property. In the absence of any such Notice or proceedings initiated against the tenants, the ex-parte orders passed against the tenants is bad in law and unenforceable.
V. The Competent Authority has erred in not taking into consideration before passing an ex-parte order that in view of the Maharashtra Housing and Area Development Act, 1976 a right has accrued in the tenants, equivalent to the right of ownership by virtue of Chapter VIII-A, introduced by 1986 Amendment, exercisable by the Tenants. The said right cannot be snatched away by any legally enforceable order that is passed ex-parte .
VI. The said ex-parte order is bad in law and unenforceable as the tenants enjoyed a right under the Rent Control Act, since the inception of the tenancy. In view of the said right under a statute, the tenancy can be terminated only by due process of law, by an Decree and order passed by Competent Court under the Rent Control Act. No such Decree or order has been passed by any such competent court of law and hence, the said exparte order passed by the Competent Authority cannot be enforced against the appellant.
VII. It is an admitted fact that the appellant was in no way concerned with the alleged illegal activities of Dawood Ibrahim Shaikh and hence, cannot be construed to be a party to the illegal activities of the said person.
VIII. The Competent Authority has failed to consider that the appellant was not a party directly or indirectly to the
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transfer of the said property from the Original Owner to Smt. Amina Ibrahim Parkar and another and hence, the appellant is not responsible for the alleged activities or the transaction of the Original owner/landlord and the new owner/landlord.
IX. The appellant submits that the show cause notice was issued in this case according to the records on 14.12.2001 and the impugned order was passed 28.03.2005 and till date, the appellant has not been heard in the matter. No prejudice will be caused to the Respondent, if the appellant is given an opportunity to be heard in the matter.
X. The appellant submits that in order to make a full-fledged
representation before this Hon‟ble Authority, the appellant will be required to collect a number of documents and orders concerning the said litigation, in which the said impugned order was passed. The appellant submits that the appellant will add and modify the above said grounds on receiving the aforesaid orders and other records and proceedings and hence, craves leave to add amend the aforesaid grounds with the permission of this Hon‟ble Court.
XI. The appellant undertakes not to create any third party interest in the premises in question.
XII. The appellant does not fall within the purview of any of the provisions of the SAFEMA, 1976. The Appellant‟s case does not fall within the purview of Section 2(2) (b). The Appellant has no nexus with the Affected Person in any manner. The Respondent has completely misread and misinterpreted the aforesaid provisions just to bring the Appellant within the purview of the SAFEMA, 1976.
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XIII. The appellant was not a party to any proceedings instituted against the Affected Person. No show cause notice was served upon the Appellant at any point of time till issuance of the present letter dated 9th June, 2015 from the office of the Respondent.
XIV. The impugned order does not speak as to how the Appellant is connected with the subject matter related to Affected Person. The impugned order does not give a valid reason for dispossessing the Appellant.
XV. The impugned order does not assign any reason of belief on which the Competent Authority have come to a conclusion that
the tenancy rights of the Appellant was required to be terminated without giving the Appellant, an opportunity of being heard in the matter and without following the due process of law, which prescribes a procedure to be followed before a Competent Court of law having jurisdiction. XVI. The Ld. Authority erroneously held without any basis that the Applicant was liable to follow the impugned orders, wherein the Appellant was not a party to the proceedings or the show cause notice instituted and issued by the Competent Authority at Mumbai. XVII. The Ld. Authority had failed to examine that the Appellant had all the valid documents and the rent receipts in his possession and is presently residing in the room premises with his family members. The Appellant has no other alternative accommodation to reside.
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namely building /structure at 24, Shabnam Guest House, Yakoob Street, Mumbai-400009 was ordered to be forfeited to the Central Government free from all encumbrances vide order no. 41/SAFEMA/MUM dated 28.03.2005 passed by the Competent Authority, Mumbai. The above order was challenged before the Hon‟ble Tribunal by filing Appeal No. FPA/13/MUM/2005d. The said appeal was dismissed as withdrawn by the Hon‟ble Tribunal vide order dated 03.02.2015 and hence the order of forfeiture became final and the Central Government became the owner of the property. Accordingly, the respective occupants/tenants were directed by the office of the Competent Authority, Mumbai to surrender and deliver the vacant and peaceful possession of the property which the appellants failed to surrender.
5.1 The reply also refers to a letter dated 10.03.2015 from the Saifee Burhani Upliftment Trust (SBUT) informing the office of the Competent Authority, Mumbai about the notice under Section 354 issued by the Municipal Corporation of Greater Mumbai (MCGM) on the said Dambarwala Building “to pull down the said structure/building as the same poses a risk and may cause untoward incident of loss of lives of the occupants of the said buildings, as well as occupants of the adjoining structure and passerby”. Accordingly, to get the property free from all encumbrances, the tenants /occupants of the Dambarwala Building were directed to handover the vacant and peaceful possession of their rooms/flats/shops vide the letter and notice dated 28.08.2015.
5.2 The respondent has placed extensive reliance on the judgment of the Hon‟ble Bombay High Court reported in 2007 (BO3) – GJX – 1913-BOM (Criminal Writ Petition No. 1088 of 1995) in an identical case of Mr. Domnic Alex Fernandes & Ors Vs. Union of India in which case the tenants of the forfeited property who claimed tenancy right in the said property challenged
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the action of the Competent Authority directing the parties to handover the vacant possession of the properties to the Central Government in terms of Section 19 of SAFEMA before the Hon‟ble Bombay High Court. In the judgment, the Hon‟ble High Court found the petition to be without any substance and dismissed the same. The extracts from the said judgment and specifically those in Paras 3, 24, 25, 28, 35 & 36 have been reproduced in the reply. It is also submitted that while the said judgment is under challenge before the Hon‟ble Supreme Court of India and the matter is still pending, considering that the order passed by the Hon‟ble Bombay High Court has not been set aside (or stayed), the judgment in question is a good and binding law.
5.3 It was also submitted that the forfeiture proceeding under SAFEMA was initiated against Mr. Dawood Ibrahim Sheikh (AP/Dawood, for short) and Ms. Hasina Ibrahim Kaskar, sister of AP/Dawood for the said property which was ordered to be forfeited to the Central Government free from all encumbrances vide Order No. 41/SAFEMA/MUM/2005 dated 28.03.2005. Since the Appellant was merely a tenant residing in the above property and not the owner/holder of the said property, the tenants were not included in the proceedings initiated by the Competent Authority for forfeiture of the property. The question of the Competent Authority following the principles of natural justice and fair play against the appellant in such proceedings does not arise in view of the relied upon judgment dated 11.07.2007 of the Hon‟ble Bombay High Court in the case of Domnic Alex Fernandes, supra and particularly Para 28 thereof wherein it was held as under-
“28. Once we hold that the property in question consequent to the forfeiture thereof in terms of Section 7(3) of SAFEMA stood vested in the Central Government free from all encumbrances, the question of granting opportunity of being heard to any person claiming any sort of interest in such property does not arise. The property having been vested in the Central Government free from encumbrances, all the so called
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encumbrances comes to an end and there cannot be an action or obligation on the part of the respondents to have further round of adjudication in relation to such interests or encumbrances. Law in that regard as being very clear, we do not find any substance in the submission sought to be made on behalf of the petitioners regarding violation of principles of natural justice. There is no dispute about the identity of the property”
5.4 With reference to the prayer (i) of the appellant to quash and set aside the impugned order dated 28.03.2005, it was stated that the said order dated 28.03.2005 passed by the Competent Authority, SAFEMA/NDPSA, Mumbai has already been upheld by this Hon‟ble Tribunal vide order dated 03.02.2015. The Respondent placed reliance on the observations of the Hon‟ble Delhi High Court in order dated 27.09.2012 passed in the case of Amina Bi Kaskar (deceased) Thr Lrs., Hasina Ibrahim Parkar Versus Union of India & Ors., reported in 2012 (DL2) GJX-2497-DEL wherein the Hon‟ble High Court at para 6 of the judgment has held as under:
“6. At this juncture itself, we would like to point out that there is no provision for review in SAFEMA. Therefore, the Tribunal, in our view, ought not to have even entertained the review petition. It is a well settled principle that the power of review is the creature of statute and unless and until the statute provides for a review, any authority, other than a Court of plenary jurisdiction, such as a High Court would not have any inherent power of review. If any authority is needed for this purpose, the decision of the Supreme Court in the case of Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) & Ors: (1987) 4 SCC 525 would be sufficient. An order purportedly passed in exercise of a review jurisdiction, which an authority does not have, would be a nullity. This is also clearly established in the said decision of the Supreme Court. Consequently, all arguments which were considered and raised and disposed of by the review order dated 10.02.1999, in our view, would be of no consequence. The review petition was not maintainable and the review order dated 10.02.1999 was also a nullity. We may point out that it is in this review application that arguments had been raised with regard to the service of the order on an agent of the appellants, namely, their lawyer/advocate. In our view, we need not go into all those arguments because they were raised only at the stage of the purported review application filed on behalf of the appellants which they were not entitled to do because there was no provision for review in SAFEMA.”
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Based on the ratio of the above judgment and considering that there are no provisions under SAFEMA for review of its order by the Tribunal, it has been submitted that the Tribunal cannot reopen the order dated 28.03.2005 by way of hearing of the present appeal.
tenancy came into existence much prior to the said proceedings to forfeit the property to the Government were initiated, and even much prior to the said Amina Ibrahim Kaskar became the owner of the said property. It was further submitted that after the forfeiture of the said building by the Central Government and the Central Government having become owner of the said building, any such notice ought to have been issued to the Central Government and not to anyone else. Accordingly, it is contended that the said notice under Section 354 of the MCGM Act cannot be referred to/made use of in these proceedings.
6.1 As regards the reliance placed by the respondent in their reply in the case of Domnic Alex Fernandes & Ors. Vs. Union of India, supra . It was stated that the grounds on which the said judgment was delivered are distinguishable and are not applicable to the present case. The correctness of the said judgment has been challenged and is pending disposal before the Hon‟ble the Supreme Court of India, meaning thereby that the contention of party raised was a matter which requires adjudication and that the judgment of the Hon‟ble Bombay High Court was also required to be reconsidered by the Hon‟ble Apex Court. It is also submitted that the Hon‟ble Apex Court has also kept in mind the claim of the Appellants therein, that they are tenants in respect of the rooms in the said matter of Mr. Domnic Alex Fernandes and others which has been forfeited and that the said matter attracted the provisions of Special Law i.e. the Maharashtra Rent Control Act and further that the claim of the parties can only be settled by the Small Causes Court at Mumbai.
6.2 It was further submitted that similar matter again came before the Hon‟ble Bombay High Court in the matter of Narayan Vitthappa Kudva v/s Union of India, reported in 2002 (2) Mah. L.J. 290. The facts of the said case are identical to the fact of the present case. The petitioner in the said case was
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the tenant of the premises which was forfeited under SAFEMA. The petitioner had claimed tenancy in respect of the said premises. According to the Petitioner therein, after the forfeiture of the said property, the Central Government took rent form the Petitioner in the same way as the Central Government took rent from the Appellant in the present case. The Division Bench of the Hon‟ble Bombay High Court came to the conclusion that the Respondent No.2, the Competent Authority constituted under the SAFEMA has not applied his mind properly and hence, the Hon‟ble High Court set aside the order impugned threin whereby the Competent Authority had directed the tenant to handover vacant possession of the said premises occupied by the tenant i.e. petitioner in the said matter. Their Lordships were pleased to observe in the said judgment as follows:
9. Having heard learned Counsel for both sides, we find the proceedings resulted in miscarriage of justice as a result of the impugned order. The SAFEMA applies, vide Section 2 to the categories of persons enumerated therein; that is, to
(i) Every person convicted under the Sea Customs Act, Foreign Exchange Regulation Act, Sea Customs Act, 1878 or the Customs Act, 1962 or the Foreign Exchange Regulation Act, 1947 for offence in relation to goods or amount exceeding one lakh of rupees or,
(ii) Every person in respect of whom an order of detention has been under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 in the circumstances enumerated therein, or,
(iii) Every person who is a relative of a person referred to in Clause (a) or Clause (b), or
(iv) Every associate of person referred to in Clause (a) or Clause (b) above, or
(v) "any holder" (hereinafter in the said Clause referred to as the present holder) of any property which was at any time previously held by a person referred to in Clause (a) or Clause (b) unless the present holder or, as the case may be anyone who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.
Explanation 2 -- defines relative of such a person, with which we are not concerned for the present.
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Explanation 3 -- defines for the purposes of Clause the word "associate" to mean -
(i) ............... (ii) ............... (iii) ............... (iv) ............... (v) ............... (vi) ...............
(vii) where the competent authority, for reasons to be recorded in writing, considers that any properties of such person are held on his behalf by any other person, such other person.
………………………
………………………
11. As far as forfeiture of the property in question in the present case is concerned, it appears that the property which stood in Gawde's name has been found to be property liable for forfeiture under the provisions of SAFEMA and therefore forfeited by the Central Government in accordance with the provisions of the SAFEMA, the petitioner is not really concerned with the forfeiture of the property of his landlord that is Gawde to the Central Government and its vesting in the Central Government. In fact, he claims that he has, after its vesting in the Central Government paid monthly rent to the Central Government and is a tenant. It is, therefore, clear that before the petitioner's rights in the property are affected, there must be a proper enquiry as to the nature of his right, i.e. whether it is a tenancy right or otherwise and must be preceded by an appropriate show cause notice which offers the petitioner an opportunity to demonstrate his legal status as regards the property in question. There must be an order determining the petitioners status in the said property.
In the present case, we find that the impugned order does not determine whether the petitioner, is actually a tenant as claimed by him and, if so, whose tenant and what has become of his tenancy right, if any.
12. It is clear that the petitioner is found to be a tenant of the erstwhile owner i.e. Gawde whose properties have been forfeited under the SAFEMA to the Central Government and thereafter the tenant of the Central Government. The petitioner's tenancy rights can only he terminated in accordance with law. Possession of the property in question can also be taken by the Central Government in accordance with the law. In this regard, it will be useful to refer to Section 7 sub-section (3) of SAFEMA which reads as follows:--
"7(3) Where the competent authority records a finding under this Section to the effect that any property is illegally acquired property, it FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015 Page 17 of 30
shall declare that such property shall, subject to the provisions of this Act, stand forfeited to the Central Government free from all encumbrances."
6.3 It was further submitted on behalf of all the appellants that the provisions of SAFEMA are similar to the provisions of the Securitization and Reconstruction of Financial Assets and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) and the Hon‟ble Apex Court in the matter of Vishal N. Kalsaria v/s Bank of India and others reported in AIR 2016 SC 530 has held that the rights enjoyed by the Tenant under the Rent Act cannot be over-looked.
6.4 It was also contended that as the Competent Authority has flouted the provisions of Section 7 of SAFEMA and the appellant has approached this Tribunal and that the Tribunal enjoys the power of the Civil Court which enjoys the power of redress of the affected party on a wrong enforcement of the orders and law. As the appellant was aggrieved by the order of the Competent Authority made under Section 7 of SAFEMA, the Hon‟ble Tribunal has got jurisdiction to admit and decide the appeal.
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7.1 Under the order dated 28.03.2005 passed by the Competent Authority, Mumbai the property “Building /Structure at 24, Shabnam Guest House, Yakoob Street, Mumbai-400009”, was held and declared to be „illegally acquired property‟ within the meaning of Section 3(c) of the Act and forfeited to the Central Government free from all encumbrances. The said order dated 28.03.2005 was the culmination of the proceedings for forfeiture of the above mentioned property under SAFEMA initiated against Dawood Ibrahim Sheikh an “affected person” (AP) (also, Dawood, for short) within the meaning of Section 2(2) (b) of SAFEMA and Smt. Hasina Ibrahim Kaskar, sister of AP in whose name the property was held were the persons concerned with the above matter to whom the show cause notice under Section 6(1) ibid was issued. In the proceedings it was concluded that though the property was held in the name of Hasina Ibrahim Parkar (sister of AP/Dawood), it was acquired from the illegal funds of Shri Dawood Ibrahim Sheikh, AP who was also the real owner of the property. In the proceedings it was also noted that Shri Dawood Ibrahim Shaikh, the AP, had been declared as an absconder under subsection (1) of Section 7 of CPFEPOSA, 1974 vide order dated 17.05.1993 of the Government of Maharashtra, Home Department (Spl). Under the impugned order dated 28.03.2005, the property in question was held and declared to be an „illegally acquired property‟ within the meaning of Section 3 of SAFEMA and was forfeited to the Central Government under Section 7 of the Act free from all encumbrances. Further, in accordance with Section 19 of SAFEMA, the affected persons were also directed to surrender peaceful and vacant possession of the property to the Inspecting Officer of the Competent Authority, Mumbai or other authorized officer within 30 days of the receipt of the order.
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accused person Sh. Dawood Ibrahim (AP) and his sister Smt. Hasina Ibrahim Parkar was passed. In the appeal it has been contended that the tenancy of the appellant is protected under the Rent Control Act applicable to the state of Maharashtra and the appellant is neither a relative nor associate of the AP or his sister against whom the order of forfeiture dated 28.03.2005 was passed. The appellant has also contended that no notice has been given to the appellant in the forfeiture proceedings and therefore the letter/notice dated 28th August, 2015 issued against the appellant seeking to dispossess the appellant from his tenanted premises is illegal and not enforceable against the appellant.
8.1 On the other hand, it is contended on behalf of the respondent that the appellant herein being merely a tenant of a portion of the premises in question, as against holder(s) of the property who alone are covered under Section 6 of the SAFEMA, the tenant was rightly not made a party to the show cause notice under Section 6 (1) of SAFEMA and in the proceedings culminating in the order dated 28.03.2005. For the same reason, the question of the Competent Authority following the principles of natural justice and fair play against the appellant(s) at the time of the forfeiture proceedings under the circumstances does not arise, they not being necessary parties. Once the properties stood forfeited to the Central Government and the appeal against the forfeiture order dated 28.03.2005 was dismissed vide this Tribunal‟s order dated 03.02.2015, the notice to surrender and deliver the vacant possession of the same to the Central Government as per the provision of Section 19 of the Act was issued in August/ September, 2015 to all the persons in occupation of the premises in question who have filed the above mentioned appeals. It is also contended that the tenancy of the appellant came to an end on forfeiture of the property to the Central Government vide the order dated 28.03.2005 and that the present notice to the appellant to surrender vacant possession of the Room/Shop occupied by him in the forfeited building to the Competent FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015 Page 20 of 30
Authority free from all encumbrances was as per the provisions of the Section 19 of the Act. The respondent has also extensively relied upon the judgment dated 11.07.2007 of the Hon‟ble Bombay High Court in the case of Domnic Alex Fernandes, supra, in this regard.
8.2 To appreciate the respective contentions, the provisions of Section 6 and
7 and 19 of SAFEMA may be referred which are as follows:
6 (1) Notice of forfeiture:- If, having regard to the value of the properties held by any person to whom this Act applies, either by himself or through any other person on his behalf, his known source of income, earnings or assets, any Section 18 or otherwise, the competent Authority has reason to believe (the reasons for such belief to be recorded in writing) that all or any of such properties are illegally acquired properties, it may serve a notice upon such person (hereinafter referred to as the person affected) calling upon him within such time as may be specified in the notice, which shall not be ordinarily less than thirty days, to indicate the sources of his income, earnings or assets, out of which or by means of which he has acquired such property, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties, as the case may be, should not be declared to be illegally acquired properties and forfeited to the Central Government under this Act.
(2) Where a notice under sub-section (1) to any person specifies any property as being held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person.
7. (1) Forfeiture of Property in certain cases .- The Competent Authority may, after considering the explanation, if any, to the show-cause notice issued under Section 6, and the materials available before it and after giving to the person affected (and in a case where the person affected holds any property specified in the notice through any other person, to such other person also) a reasonable opportunity of being heard, by order, record a finding whether all or any of the properties in question are illegally acquired properties.
(3) Where the Competent Authority records a finding under this Section to the effect that any property is illegally acquired property, it shall declare that such property shall, subject to the provisions of this Act, stand forfeited to the Central Government free from all encumbrances.
19. Power to take possession : (1) Where any property has been declared to be forfeited to the Central Government under this Act, or where the person affected has failed to pay the fine due under sub-section (1) of section 9 within the time allowed therefor under sub-section (3) of that section, the Competent Authority may order the person affected as well as
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any other person who may be in possession of the property to surrender or deliver the possession thereof to the Competent Authority or to any person duly authorized by it in this behalf within thirty days of the service of the order.
(Emphasis added)
8.3 As seen from the above provisions of SAFEMA, prior to forfeiture of any property under the Act, show cause notice under Section 6(1) of the Act is required to be issued to the holder(s) of such properties in respect of which the Competent Authority has “reason to believe” that all or any such properties are illegally acquired properties, so as to give him an opportunity to show that the property in question was acquired from licit sources. In the present matter, such Show Cause Notice was issued to Sh. Dawood Ibrahim Shaikh( the AP/Dawood, for short), the AP and from whose funds amassed out of smuggling activities on an organized scale, the property was acquired and his sister Hasina Ibrahim Parkar, the holder of the property at the material time when the show cause notice under Section 6(1) was issued. As already noted herein-before, the proceedings culminated in forfeiture of the related property vide the order dated 28.03.2005. The present appellant, being a tenant of a portion of the forfeited premises, cannot in any way be considered to be a holder of the forfeited property or a portion thereof. Therefore, the action of the Competent Authority in not issuing the show cause notice under Section 6(1) to a tenant of the forfeited property/portion of the forfeited property and making him a party to the forfeiture proceedings is in accordance with the provisions of law and cannot be faulted. Not being a party to the forfeiture proceedings under the Act and not being concerned with the acquisition of the property in any maner, the appellant does not have any locus standii to challenge the forfeiture of the subject property by the order dated 28.03.2005 under Section 7 of the Act.
8.4 Moreover, on going through the instant appeal, it is seen that there are
no pleas / contentions raised therein and/or evidence produced to show the
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sources from which the property in question was acquired. In fact, the stated case of the appellant also being that he was only a tenant of a portion of the property forfeited in the case, there could have been no occasion for him to produce any evidence regarding the sources for acquisition of the property in question. We therefore, find that in substance, the challenge of the appellant in the instant appeal is not to the forfeiture of the property under Section 7 of the Act but to the action of the respondent under Section 19 of the Act requiring the appellant to surrender the vacant possession of the portion of the forfeited property occupied by him to the concerned officer of the Competent Authority. However, before this question is considered on merits by this Tribunal, a question arises whether appeal against an order/communication under Section 19 of the Act is maintainable as per the provisions of the Act or not. This question is examined in the following para.
12 (4) 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 45 days from the date on which the order served on him, prefer to an appeal to the Appellate Tribunal.
Thus as per the above provision, only order of the Competent Authority made under Section 7, Sub Section (1) of Section 9 or Section 10 are appealable to the Appellate Tribunal. Section 9 ibid pertains to cases where the fine in lieu of forfeiture is involved and Section 10 pertains to cases where the property in question is a trust property and are clearly not relevant to the present matter. It has already been discussed in Para 8.3 above that the appellant does not have any locus standii to appeal against an order under Section 7 of the Act forfeiting a property under the SAFEMA. Further, in Para 8.4 above it has been concluded that in substance the present appeal is not an appeal against an order under Section 7 passed by the Competent FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015 Page 23 of 30
Authority forfeiting the property but against the action initiated by the respondent to take possession of the forfeited property in terms of Section 19 ibid. However, in terms of the provisions of Section 12 of the SAFEMA pertaining to appeals under the Act, orders under Section 19 of SAFEMA are not appealable to the Appellate Tribunal. It is well settled the Tribunal being a creation of the statute, it is bound by the provisions of appeal as laid down in the concerned statute. As the statute does not provide for appeals against orders/communications under Section 19 of SAFEMA, clearly the subject appeal is not maintainable as per the provisions of SAFEMA.
“6. At this juncture itself, we would like to point out that there is no provision for review in SAFEMA. Therefore, the Tribunal, in our view, ought not to have even entertained the review petition. It is a well settled principle that the power of review is the creature of statute and unless and until the statute provides for a review, any authority, other than a Court of plenary jurisdiction, such as a High Court would not have any inherent power of review. If any authority is needed for this purpose, the decision of the Supreme Court in the
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case of Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) & Ors: (1987) 4 SCC 525 would be sufficient. An order purportedly passed in exercise of a review jurisdiction, which an authority does not have, would be a nullity. This is also clearly established in the said decision of the Supreme Court. Consequently, all arguments which were considered and raised and disposed of by the review order dated 10.02.1999, in our view, would be of no consequence. The review petition was not maintainable and the review order dated 10.02.1999 was also a nullity. We may point out that it is in this review application that arguments had been raised with regard to the service of the order on an agent of the appellants, namely, their lawyer/advocate. In our view, we need not go into all those arguments because they were raised only at the stage of the purported review application filed on behalf of the appellants which they were not entitled to do because there was no provision for review in SAFEMA.”
It is observed that there is no provision under SAFEMA, providing for review of appellate orders under the Act. In the absence of any power for review under SAFEMA and as the appeal against the order dated 28.03.2005 already stands dismissed by the Tribunal‟s order dated 03.02.2015 which has become final and on following the ratio of the cited judgment, the contention of the respondent that the order dated 28.03.2005 cannot be re-opened by the Tribunal in any manner by way of the present appeal merits acceptance.
10.1. The respondents have placed strong reliance on the judgment of the Hon‟ble Bombay High Court in the case of Dominic Alex Fernandez, supra in support of their contention for non-reopening of the forfeiture order dated 28.03.2005 which has already attained finality. In the said case, the tenants in respect of the forfeited property in that case had challenged the action of the respondent to take possession of the forfeited property under section 19 of SAFEMA before the jurisdictional High Court. However, such challenge was repelled by the Hon”ble Bombay High Court as being without any merit. The following extracts from the said judgment may be referred in this context
“2. The petitioners are seeking to challenge the action sought to be taken by the respondents under Section 19 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, hereinafter called as SAFEMA for brevity, mainly on the ground that the petitioner are lawful tenants in respect of flats in the building and that they cannot be evicted therefrom without following due
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process of law which is otherwise required to be followed in case of eviction of tenants of a building.
3. Few Undisputed facts relevant for the decision are that there existed a building called “Gawde Building” at Juhu Koliwada, Mumbai which belonged to one Mr. Francis Coelho and consisted of a chawl wherein the petitioners and their ancestors were residing as the tenants. One Shri Krishna Budha Gawde purchased the said building sometime in 1965 and thereafter reconstructed the building in 1972. It was pursuant to the purchase of the premises by Shri Krishna Budha Gawde that the building came to be known as the “Gawde Building”. Under the agreements with the said Shri Krishna Budha Gawde, the petitioners occupied the reconstructed building and continued to pay the rent to said Krishna Budha Gawde. The petitioners were served with a notice dated 5th July, 1995 by the office of the respondent No. 2 calling upon the petitioners to vacate the respective rooms and handover the possession thereof to the respondents. The notice was replied to by the petitioners through their advocate on 19th July, 1995 raising the issue of tenancy in relation to the premises and being protected under the law of land applicable to them and further that they were not parties to the SAFEMA proceedings against the landlord of the said building, nor they had any opportunity of being heard in the said proceedings at any time. Under notice dated 22nd August, 1995 the respondents informed the petitioners that the proceedings which were initiated under the SAFEMA against the said Shri Krishna Budha Gawde were concluded whereby the property in question stood forfeited to the Government and even the Appellate Tribunal had confirmed the said forfeiture.”
“24. The learned Advocate for the petitioners however drew our attention to various rent receipts stated to have been issued by the officers of the Central Government in relation to their occupation to the property and submitted that the same discloses undisputed fact about their leasehold right in the property in question. There is no substance in this contention. Mere acceptance of money having accepted by the Government officers as rent or compensation for occupation of such property by such person, that cannot give a status of tenant to such occupants. It is well settled that once the property vests in Central Government, any third person can occupy such property only with appropriate grant or permission by the competent authority dealing with the subject of grant of land or the property of the Central Government in favour of third person. Merely because a stranger occupies the property belonging to the Government that itself cannot be a ground to create right in favour of such a person to claim that he has interest in such land. In respect of rent amount paid by the FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015
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petitioners, the same must be accepted by any Government officer having authority to accept the money on behalf of the Government and further authority must be to accept the money as rent. Any officer accepting the money and specifying the same as rent or compensation for occupation of the Government’s land that itself cannot create either tenancy or license in favour of such persons against the Government, nor it entitles him to occupy the Government land. Occupation of the Government’s land has necessarily to be under authority of law, granted by duly empowered officer in that regard in favour of such persons and by following due process of law and not otherwise. It is not the contention of the petitioners that any such duly authorized authority had created the tenancy rights in favour of the petitioners in relation to the building in question. Neither there is plea in that regard nor any material on record.
25. Being so, merely because the petitioners herein were in occupation of the building of late Gawde cannot contend as a matter of right that they continued to be tenants even after forfeiture of the property in terms of Section 7(3) of the SAFEMA. The settled law is very clear under Section 7(3) of SAFEMA that the moment the property is forfeited; it stands vested in the Central Government free from all encumbrances. The acceptance of the contentions which are advanced on behalf of the petitioners would virtually render Section 7(3) to be nugatory and it will virtually defeat the very purpose for which SAFEMA was enacted.”
“28. Once we hold that the property in question consequent to the forfeiture thereof in terms of Section 7(3) of SAFEMA stood vested in the Central Government free from all encumbrances, the question of granting opportunity of being heard to any person claiming any sort of interest in such property does not arise. The property having been vested in the Central Government free from encumbrances, all the so called encumbrances comes to an end and there cannot be an action or obligation on the part of the respondents to have further round of adjudication in relation to such interests or encumbrances.....”
“29. Section 19 of the SAFEMA clearly provides that where the property has been declared as forfeited, the Competent Authority may order the person affected as well as “any other person who may be in possession of the property” to surrender or deliver possession thereof to the Competent Authority within 30 days of the service of order. Obviously, therefore, tha prerequisite of exercise of powers under Section 19 is the forfeiture of the property under Section 7(3). Once it is not in dispute that there is such an order in terms of Section 7(3) and FPA-23-24-25-26-27-28-29-30-31-32/MUM/2015
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that is has attained finality, in the absence of challenge thereto no fault can be found for initiating proceedings under Section 19 by the Competent Authority“
“35. We do not fine any substance in this Petition. The Petition, therefore, fails and is hereby dismissed.”
The ratio of the above judgment of the Hon‟ble High Court supports the conclusion reached here-in-above in the present case that the forfeiture of the property which had become final cannot be re-opened by way of adjudication of the present appeal filed by a person in occupation of the forfeited property against action to dispossess him from the said property in terms of Section 19 0f SAFEMA. We also agree with the submissions of the Respondent that the order dated 28.03.2005 has already attained finality and for the reasons stated by the Respondent, the present appeals are not maintainable. Even the time to file the appeals challenging the order dated 28.03.2005 cannot be extended in view of statutory provisions of limitation under SAFEMA to challenge the forfeiture orders.
his sister Smt. Hasina Ibrahim Parkar, these had been purchased out of the funds of Dawood who was the real owner of the same. From the proceedings, it is clear that Dawood has not come forward to claim any right in the property. Equally, though Smt. Hasina Ibrahim Parkar, the sister of Dawood and the person claiming ownership of the subject property at the material time initially submitted reply to the show cause notice, appeared for personal hearing through an advocate and later also filed an appeal against the forfeiture order dated 28.03.2005, she too did not take the matter to its logical conclusions and in due course her legal heirs withdrew the appeal and the same was dismissed vide the Tribunal‟s order dated 03.02.2015 and the forfeiture order dated 28.03.2005 attained finality. Thus, both the parties i.e. the real owner from whose funds the subject property was acquired and the owner/landlord who was receiving the rent from the tenants have not contested the matter. In these circumstances, it appears to us that the forfeiture order cannot be reopened by recourse to the present litigation by the tenants before this appellate forum which, as seen in Para-9 above, has restricted jurisdiction.
13.1 As the appellants have been in occupation of the respective properties in question for a considerable period, further action for dispossession of the appellants in terms of the provisions of the SAFEMA and as per law may be taken by the Competent Authority only after a period of four weeks from the date of this order and the same is ultimately to be vested with the Central Government
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13.2 Interim orders passed in the matter are also vacated.
(Justice Manmohan Singh) Chairman
(Kaushal Srivastava) Member
(Anand Kishore) Member
New Delhi, 11th January, 2017.
„d‟
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2 issues framed by the court
Whether a tenant whose rights are allegedly protected under the Rent Control Act can claim protection from eviction if the property occupied stands forfeited to the Central Government under SAFEMA.
Whether an appeal to the Appellate Tribunal under SAFEMA in respect of orders under Section 19 to take over possession of forfeited properties is maintainable.
Colour shows how this judgement treated each authority
Union of India & Ors. Vs. Domnic Alex Fernandes & Ors.Distinguished¶59
2007 (BO3) – GJX – 1913-BOM (Criminal Writ Petition No. 1088 of 1995)
Amina Bi Kaskar (deceased) Thr Lrs., Hasina Ibrahim Parkar Versus Union of India & Ors.Relied on¶68
2012 (DL2) GJX-2497-DEL
Narayan Vitthappa Kudva v/s Union of IndiaDistinguished¶76
(2002) 2 Mah. L.J. 290
1 provisions across 1 enactments
Mansoor Taherali Mister
Sayyed Rafique Husain
Hajiani Mariam Bai Jaji Kasam
MANMOHAN SINGH
KAUSHAL SRIVASTAVA
ANAND KISHORE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
