Dismissed

FPA-ND-94/LKW/2017 of Hare Ram Rai & Anr. v/s The Competent Authority, Lucknow

ATFP5 May 2017FPA-ND-94/LKW/2017

Case brief

AI extract

What is this about?

The Appellate Tribunal held that it lacks statutory power to condone delay under Section 68-O(1) of the NDPS Act beyond 60 days. Dismissing the application for condonation of delay filed five years after knowledge of the order, the Tribunal declared the subsequent appeal and stay applications not maintainable.

What did the court decide?

Application for condonation of delay dismissed; appeal and stay applications declared not maintainable.

FPA-ND-94/LKW/2017 of Hare Ram Rai & Anr. v/s The Competent… — Narcotics (NDPS) | ATFP (2017)

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APPELLATE TRIBUNAL FOR FORFEITED PROPERTY NEW DELHI

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Date of Judgement: 05.05.2017

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FPA-ND-94/LKW/2017 MP-ND-174/LKW/2017 (COD) MP-ND-191/LKW/2017 (Stay)

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Hare Ram Rai & Anr

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… Appellant/Applicant

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Versus

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The Competent Authority, Lucknow … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant	: Ms. Divyesh Pratap Singh, Advocate
For the respondent	: Shri Munish Kumar, Advocate with Shri D.C. Bisht, Joint Commissioner
CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SHRI G.C. MISHRA	: MEMBER
SHRI B.K. BANSAL	: MEMBER

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JUDGEMENT

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MP-ND-174/LKW/2017 (COD) MP-ND-191/LKW/2017 (Stay) FPA-ND-94/LKW/2017

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As it appears from the Memo of Appeal that the appellants are challenging the impugned order dated 31.07.2003 passed under section 68-I (1)(2)&(3) of NDPS Act 1985. Whereas, as per column 8 of the said Memo of Appeal, the relief claimed by the

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appellants is as under:-

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a) allow the present appeal and set aside the confirmation order dated 17.09.2002 passed vide F.No.20/CA/NDPS/LDO/2001/626 by the Competent Authority and Administrator SAFEM (FOP) and NDPS Act, 57-A, R.F., Bahadurji Marg, Lucknow as well as the order dated 21.08.2002 assed by the Intelligence Officer, Narcotics Control Bureau, Varanasi in F.No. CNB/FFT/NF/48/2000/228.

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FPA-ND-17/LKW/2002

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Page 1 of 10

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Alongwith the Memo of Appeal, the appellants have filed application for stay as well as application for Condonation of Delay vide MP-ND-191/LKW/2017 and MP-ND-174/2017 respectively. It is seen from the order dt 20.04.2017 that the nomenclature of said MPs have been wrongly typed as MP-ND-137/LKW/2016 (stay) and MP-ND-174/LKW/2016 (COD). The same may be read as MP-ND191/LKW/2017 (stay) and MP-ND-174-2017(COD) respectively.

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Before admitting the appeal and considering the application for stay of operation of order dated 31.07.2003, it is necessary to consider the application for Condonation of Delay.

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Hence, we proceed to consider the petition for condonation of delay first. Section 68-O of NDPS Act 1985 deals with the appeal which provides that an appeal to this Tribunal lies against an order of the Competent Authority made under section 68-F, 68-I, sub-section (I) of Section 68 K or section 68-L of NDPS Act 1985. The present appeal, as it appears from the application for Condonation of Delay that, it is filed challenging the order dated 31.07.2003 passed under section 68- I (1)(2) and (3) of NDPS Act, 1985.

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Section 68-O (I) of the said Act has prescribed limitation for filing appeal within 45 days from the date of service of the order. The statute has granted another 15 days beyond the period of 45 days up to 60 days to file the appeal before this Tribunal, if the appellant is prevented by sufficient cause in not filing the appeal within 45 days. This Tribunal, if satisfied, may condone the delay if the appeal is filed after 45 days but before 60 days but not thereafter.

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The relevant provision of the NDPS Act, 1985 are

reproduced below:-

FPA-ND-17/LKW/2002

Page 2 of 10

“ 68-(0)(1) NDPS Act, 1985.- [Any officer referred to in sub-section(1) of section 68E or any person aggrieved by an order of the competent authority] made under section 68F, section 68I Sub –section (I) of section 68K or section 68L, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal.

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Provided that the Appellate Tribunal may entertain an appeal after the said period of fortyfive days, but not after sixty days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.”

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At para no. 12 and 13 of the Condonation of Delay petition, the following has been stated by the appellants:-

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The same are reproduced below :-

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“12. That the Appellants got to know about the order under section 68 H dated 30.12.2002 and order under section 68I (1) (2) (3) of the NDPS Act dated 31.07.2003 only on 24.08.2011.

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13. That the Appellants got to know about the aforesaid order after they had approached the Hon’ble High Court, where the Ld. Advocate engaged by him had taken copies of the aforesaid orders from the office of Ld. Competent Authority”.

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From the above, it is clear that the appellants / applicants came to know about impugned order dated 31.07.2003 on 24.08.2011 after they had approached the Hon’ble High Court by way of filing Writ Petition no. 18006 of 2011 (wrongly shown as 18002 of 2011) . But the applicants filed the present appeal in 2017. The appellants have advanced certain grounds in non filing of appeal in his application for condonation of delay. The appellants/applicants have cleverly do not mention the number of day delayed in filing appeal.

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The order dated 31.07.2003 is a consequential order to the main order dated 17.09.2002. The order dated 17.09.2002 was the order passed under section 68 – F(2) by the Competent Authority confirming the forfeiture of the properties in question. It is

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FPA-ND-17/LKW/2002

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Page 3 of 10

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important to mention here that the appellants earlier challenged the main order dated 17.9.2002 before this Appellate Tribunal vide FPA No. ND-17/LKW/2002. The said appeal was dismissed in default vide order dated 15.09.2004. Thereafter, the appellants preferred an application for restoration of appeal FPA No. ND-17/LKW/2002 in the year 2016 i.e. after eleven years vide MP-ND-135/LKW/2016 along with an application for Condonation of Delay vide MP-ND136/LKW/2016. The Condonation of Delay petition was considered by this Tribunal on merit and dismissed the same on 23.02.2017 with the following observations:-

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“ The genesis of the present petitions are that an appeal was filed by Shri Hare Ram Rai & Anr. against the order dated 17.9.2002 passed by the Competent Authority and Administrator SAFEMA (FOP) & NDPS, Lucknow. The said appeal came to be numbered as FPA-ND-17/LKW/2002. The petition in said appeal was disposed of by this Tribunal’s order with certain observation vide order dated 26.4.2004. The said order dt. 26.04.2004 is reproduced as under:-

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“ The learned counsel for the applicant/appellant invited our attention to the observation made in the order under appeal that the applicant/appellant did not produce any evidence to prove the ownership of certain properties at the stage the impugned order has been passed. The learned counsel’s apprehension is that because of the observation the Investigation Officer of the Competent Authority may not accept the evidence of proof of ownership of the property that the applicant may like to produce before them. In our view this apprehension does not appear to be correct as the matter is still under investigation and the notice of forfeiture will be issued only after the Competent Authority comes to a prima facie view that any particular property is illegally acquired. Till then the affected person including the relatives and associates of the convicted or detained persons may approach the Competent Authority to show their bone fide in respect of the properties in question. Shri Alok Chopra, joint Commissioner appearing for the competent Authority says that there will be no restriction on accepting any

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FPA-ND-17/LKW/2002

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Page 4 of 10

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evidence which may be produce by the appellant to prove the ownership of the property and the same would be taken for consideration before proceeding with the forfeiture of the properties in question.

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In view of the above, the learned counsel for the applicant/appellant has not pressed for stay of the impugned order. Therefore, we dismiss the petition. However, the applicant/appellant has still the remedy to approach the Competent Authority for permission to deal with the properties in question.”

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The said order was not challenged by either parties so the same became final and binding on them. As per the direction made in the appeal, the appellant/applicant was to approach the Competent Authority for permission to deal with the properties in question. But, during the course of hearing today the learned counsel for the appellant admits before us that subsequent to the said order, the appellant has not approached the Competent Authority.

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It appears that, on 15.9.2004, the appeal bearing no. FPAND-17/LKW/2002 was dismissed in default. The order is reproduced as under:-

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“On the first call no one from the appellant appeared. The matter is passed over.

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2. Even on the second call no one is present from the side of the appellant.

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Accordingly the appeal is dismissed in default.”

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The appellants Shri Hare Ram Rai and his wife Mrs. Ranju Rai preferred three petitions bearing no. MP-ND-135/LKW/2016, MP-ND-136/LKW/2016 & MP-ND-137/LKW/2016 for restoration of appeal, condonation of delay and stay of the operation of order dated 04.02.2016 in file no. 20/CA/NDPS/LKO/2001/1547 & 20/CA/NDPS/LKO/2001/1548 on 24.02.2016

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FPA-ND-17/LKW/2002

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Page 5 of 10

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The aforesaid miscellaneous petitions were filed in said appeal which had already been dismissed in default in 2004. It appears from the petitions that even the Hon’ble High Court of Allahabad vide its order dated 27.11.2015 in writ petition no. 18006/2011 has refused to give any substantial relief to Shri Hareram Rai & his wife in view of the fact that the appeal before this Tribunal was dismissed in default. In fact it is seem from the copy of order dated 27.11.2015 passed by Hon’ble High Court that the Hon’ble court has expressed its surprise that “ the factum of filing of the appeal and its dismissal in default has been concealed in the present writ petition”.

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On page 164, of the paper book the Hon’ble High Court has observed as below:-

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“What is worse to note is that neither the order dated 17.9.2002 passed in exercise of power under section 68-F(2) of the Act has been challenged by means of the present writ petition nor the order made in exercise of power under section 68-I(1)(2) and (3) of the Act dated 31.7.2003 has been challenged.”

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At para 2 of page 165 of the paper book, it is opined by the Hon’ble High Court that “in our opinion, order passed under section 68-U is only a consequential order in terms of the order which were made under sections 68-F(2) and 68-H(1). The order dated 15.9.2004, dismissing the appeal in default referred to above, has also not been challenged by the petitioner in the present petition”

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“It is settled law that consequential action cannot be challenged without challenging the main order”.

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We have heard both parties and considered all the materials available on record. The petition for restoration of FPA-ND-17/LKW/2002 Page 6 of 10

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Page 6 of 10

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appeal has been filed alongwith the condonation of delay after more than 11 years without any sufficient cause for restoration of the appeal. The respondent has raised strong objection to the petitions.

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Even the AP & his wife did not take the benefit of this tribunal’s order dated 26.4.2004. There is no sufficient ground placed on record, to the satisfaction of the Tribunal, for condoning the huge in-ordinate delay to restore the appeal which was dismissed in default on 15.9.2004.

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It also appears that the aforesaid petitioners are not diligent in proceeding with the case and to assert their points, even though sufficient opportunity was given to them. It also appears that they are interested in multiplying the litigation and wasting the valuable time of the Tribunal. In view of the above we are not inclined to allow the prayer made in these petitions as there is no merit in the petitions filed by them before this Tribunal.

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As a result, the application for condonation of delay is dismissed on merits and consequently the other two applications which are linked to the original appeal are also dismissed”.

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In the aforesaid order dated 23.02.2017, this Tribunal had considered the factual position of the case also the observation made by Hon’ble High Court, Allahabad in its order dated 27.11.2015 in WP 18006/2011. It is pertinent to mention here that the appellants/applicants who are also appellants/applicants in earlier appeal did not taken any plea of illness in their application for Condonation of delay in earlier appeal even though it was filed in Feb-2016. In the present Condonation of Delay application the applicant has taken grounds of intermittent illness w.e.f. 2015. FPA-ND-17/LKW/2002 Page 7 of 10

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Page 7 of 10

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Heard both the parties on Condonation of Delay petition and peruse the materials on record. From the perusal of material placed before us it is the admitted fact that the appellants/applicants had the knowledge of impugned orders dated 31.07.2003 on 24.08.2011. So accepting the contention of the applicants the period of limitation starts from 24.08.2011. The appeal ought to have been filed within 45 days which expired on 08.10.2011. The appeal could have been considered by this Tribunal, subject to its satisfaction, had the appeal was filed within 60 days from 24.08.2011 which expired on 23.10.2011. In the present case, the appeal has been filed more than five years after the date/day of knowledge of the impugned order dated 31.07.2003. Further, the appeal against main order dt. 17.09.2002 passed u/s 68 F(2) of NDPS has already been dismissed by this Tribunal. The applicants have not advanced any valid/sufficient reasons that prevented them from filing appeal in time. For the sake of argument, even if the reasons are valid, this Tribunal has no statutory power to condone delay after 60 days.

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Keeping in view the language of the statutory provisions u/s 68 O(1) of NDPS Act 1985 and settled position of law, this tribunal has already taken a view in FPA-ND-79/DLI/2016 Shri Bira Ram Versus Competent Authority, Delhi and FPA-ND-52/DLI/2016 M/s Aria Hotels Consultancy Service Versus Competent Authority, Delhi that this Tribunal is not statutorily empowered to condone delay of appeal filed after 60 days. The aforesaid view was taken not only on the basis of statutory provision but also relying on following judgements of Hon’ble Supreme Court and High Court:-

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(i) In the latest judgment delivered on 1^st March, 2017 by three Judges Bench of Hon’ble Supreme Court in the matter of

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FPA-ND-17/LKW/2002 Page 8 of 10

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ONGC v/s Gujarat Energy Transmission Corporation Ltd. and Others in civil no. 1315 of 2010 reported in 2017 SCC online SC 223.

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(ii) Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission& others reported in (2010) 5 SCC 23

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(iii) Fair Growth Investments Limited v/s Custodian reported in (2004) 11SCC 472.

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(iv) By Hon’ble High Court, Delhi in the matter of LPA 656/2011 & C.M. 15077/2011 (Amina Bi Kaskar vs U O I & others) and LPA 657/2011 CM 15079/2011 (Hasina Ibrahim Parkar vs U O I).

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In view of the restriction of power, this tribunal is statutorily bound under the proviso to section 68(O)(1) of said NDPS Act, 1985 and consequently does not have power to condone delay beyond sixty days. If we look into the language of the relevant provisions it is seen that there is clear legislative intention not to empower this Tribunal to condone the delay beyond sixty days. The parliament has consciously excluded the power of this Tribunal.

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NDPS Act, 1985 is a self contained special Act enacted by the parliament.

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The language used providing provision relating to the limitation for filing an appeal under Arbitration and Conciliation Act, 1996 (Sec. 34), the appeal proviso under Electricity Act-2003 (sec. 125), Special Court(Trial of offences Relating of Transactions in Securities) Act,1992-Ss.4(2), 3(2), & 3, 9-A and 11 the appeal proviso under SAFEMA, 1976 (sec.12(4)] and NDPS Act, 1985 [sec. 68(O)(1)] are substantially similar and the judgment of Hon’ble

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FPA-ND-17/LKW/2002

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Page 9 of 10

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Supreme Court and Hon’ble High Court have settled the question of law on the issue.

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Having the aforesaid settled position of law, it is held that the application for condonation of delay is devoid of merit. There is huge delay in filing appeal. This tribunal is not empowered to condone delay beyond 60 days. Hence application for condonation of delay is dismissed consequently the appeal as well as stay application are not maintainable .

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In the circumstances there is no order as to cost.

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(Justice Manmohan Singh) Chairman (G.C. Mishra) Member (B.K. Bansal) Member New Delhi, 5^th May, 2017 M

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FPA-ND-17/LKW/2002

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Page 10 of 10

FPA-ND-94/LKW/2017 of Hare Ram Rai & Anr. v/s The Competent Authority, Lucknow

Case brief

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FPA-ND-94/LKW/2017 of Hare Ram Rai & Anr. v/s The Competent Authority, Lucknow

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