Allowed

FPA-ND-7/BOM/2012 of Shahnaz Khan v/s The Competent Authority, Mumbai & Ors.

ATFP13 Dec 2017FPA-ND-7/BOM/2012

Case brief

AI extract

What is this about?

The Tribunal rejected the limitation objection as the High Court had already directed the hearing. It held the property, validly sold to the appellant in 1994, was illegally forfeited and ordered it to be debarred forthwith.

What did the court decide?

The property is defreezed forthwith by allowing the appeal.

What the court decided

FPA-ND-7/BOM/2012 of Shahnaz Khan v/s The… — Pension and Retirement Benefits | ATFP (2017)

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APPELLATE TRIBUNAL FOR FORFEITED PROPERTY NEW DELHI

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DATE OF DECISION: 13.12.2017

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MP-ND-11/BOM/2014 (Misc.) MP-ND-44/BOM/2013 (Appln. for Deletion) MP-ND-56/BOM/2013 (COD) &

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FPA-ND-7/BOM/2012

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Shahnaz Khan … Appellant Versus The Competent Authority, Mumbai … Respondents & Ors.

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Divyesh Pratap Singh, Advocate Shri Aditya Singh, Advocate
For the respondent	: Shri Ratnessh Srivastava and Shri Stanly Joseph, I.O.
CORAM JUSTICE MANMOHAN SINGH SHRI ANAND KISHORE	: CHAIRMAN : MEMBER

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JUDGMENT

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FPA-ND-7/BOM/2012, MP-ND-11/BOM/2014 (Misc.), MP-ND44/BOM/2013 (Appln. for Deletion) & MP-ND-56/BOM/2013 (COD)

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An order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act was passed against one Mohd. Shafi on 30.07.1999.

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The aforesaid detention order was followed by a notice under Section 68-H of the NDPS Act against the detainee, the said notice proposed forfeiture of several properties, including the property situated at Plot No. 204, Khasra No. 309/1, Sirpur, Dhar Road, Tapara City,

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FPA-ND-7/BOM/2012

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Page 1 of 9

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Indore (M.P.), by the Competent Authority, Mumbai. The property was frozen under the provisions of Section 68-H of the NDPS Act.

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Thereafter, the Competent Authority had forfeited the aforesaid property under Section 68-I of the NDPS Act by order dated 28/06/2007 by giving its finding that the aforesaid property has been recorded in the name of one Mohd. Shakir S/o Mohd. Shafi since 1994. As Shri Shakir had failed to prove his source of income, the said property was considered an illegally acquired property.

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It is alleged by the appellant that on 24/04/2008 the officers of the Competent Authority had pasted a notice at the aforesaid property stating that the said property was forfeited to the Central Government vide the order of the Ld. Competent Authority on 24/04/2008 and till 27/04/2008, the Appellant had not known anything about the detention of aforesaid Mohd. Shafi or about the freezing and forfeiture proceedings of the various properties held by said Mohd. Shafi or by his family members of his relatives.

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On merit, the case of the appellant is that one Mohd. Wahid s/o Abdul Rahim R/o Dhar Road, Indore had entered into an agreement to sell the property situated at Plot No. 132 opposite District with Mohd. Shakir Hospital, Dhar Road, Indore, Madhya Pradesh admeasuring 55 ft. x80 feet (herein referred to as “the said Property”). The said property was agreed to be sold on 01.10.1991.

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5.1 Mohd. Shakri, Mohd. Shahid and Mohd. Asif had entered into an agreement to sell the said property with the mother of the appellants herein on 01.10.1992 for a total sum of Rs. 4,40,000/- out of which a sum of Rs. 50,000/- was paid an advance.

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FPA-7/BOM/2012

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Page 2 of 9

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5.2 On 21.03.1993, the aforesaid agreement dated 01.10.1992 was amended/ratified and the mother of the appellants had further paid a sum of Rs. 2,30,000/- reducing the balance due to seller to Rs. 1,60,000/-. She had further undertaken to pay an additional sum of Rs. 40,000/- for the existing structures on the said property.

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5.3 A power of attorney was executed by aforesaid Mohd. Shakir in favour of father of the Appellants namely Babubhai @ Mehmood Hussain Farooqi on 08.12.1994, for executing sale deed in connection with the aforesaid in favour of the appellants and himself.

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5.4 On the basis of aforesaid Power of Attorney and other documents, four sale deeds were executed in respect of the said property on

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09.12.1994 favouring following persons:

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Sale Deed Executed in Favour of	Registration No.	Book No.	Pg. No.
Mohammad Iqbal S/o Mr. Mehmood Hussain Farooqui	1A/3451 dt. 09/12/2014	11936	33/40
Mehmood Hussain S/o Hazi Mohammad Yakoob Farooqui	1A/3452 dt. 09.12.1994	11936	50/57
Mohammad Sarfraz S/o Shri Mehmood Hussain Farooqui	1A/3453 dt. 09.12.1994	11936	41/49
Smt. Shehnaz Bi W/o Dr. Shakir Khan	1A/3454 dt. 09.12.1994	11936	58/64

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5.5 “Subject Property” was mutated in the name of the Petitioners in the Municipal Records on 26/08/1995.

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FPA-7/BOM/2012

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Page 3 of 9

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Admittedly, an order under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act was passed against one Mohd. Shafi on 30.07.1999. The aforesaid detention order was followed by a notice under Section 68-H of the NDPS Act against the detainee, the said notice proposed forfeiture of several properties including the property situated at Plot No. 204, Khasra No. 309/1, Sheerpur, Dhar Road, Tapara City, Indore, M.P. by the Competent Authority, Mumbai. The property was purportedly frozen under the provisions of Section 68-H of the NDPS Act.

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The Competent Authority had forfeited the aforesaid property under Section 68-I of the NDPS Act vide his order dated 28.06.2007 by making a purported finding that the aforesaid property has been recorded in the name of one Mohd. Shakir S/o Mohd. Shafi since 1994 and aforesaid shakir had failed to prove his source of income, thus the said property was an illegally acquired property.

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The facts as mentioned are not disputed by Sri Stanly Joseph who has also fairly stated that the sale deed was registered in favour of the appellant in December, 1994 prior to notice. The accused persons have no relation with the purchaser of the said property in the year 1994. He has already inspected all relevant documents as per direction issued by this Tribunal earlier.

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Mr. Stanly Joseph submits that as the property was entered in the name of accused therefore the same was freezed. He has not denied that actually the property was validly sold to the appellant much prior to date of offence by virtue of sale deed though in municipal record, the name of the appellant was entered.

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FPA-7/BOM/2012

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Page 4 of 9

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His main and only objection is that the appeal was not filed in time. The same is barred by limitation, therefore it is liable to be dismissed.

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It is admitted case that the appellant were never issued any notice regarding the aforesaid proceedings, the appellants were neither informed by the Competent Authority either directly or indirectly that the property was being prosecuted under the provisions of Section 68 of the NDPS Act. On behalf of appellant, it is alleged that he did not know about the addresses of Competent Authority, Mumbai or about any District Opium Officer or about any other officer of Narcotic Department. They are not conversant with the English language and therefore they could not contemplate the contents of the aforesaid notice. When the respondent had issued notice of auction regarding the aforesaid property in the newspaper through which the appellants got to know about the consequences of the notice.

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On 12.01.1999, the appellants had the notice pasted at the “Subject Property.” The appellants had filed a writ Petition bearing W.P. NO. 2765/2008 before the Hon‟ble High Court. The High Court vide its order dated 12.01.2009 disposed of the writ petition after hearing both the sides. The Hon‟ble High Court had observed that Appellate Tribunal will treat the appeal within the period if the appellants file the appeal before 29.01.2009. Further, the High Court had directed the parties to maintain status quo until February 12, 2009, to enable the appellants to make the prayer for interim relief before this Tribunal.

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It is the case of the appellant that on 27.01.2009 in view of order dated 12.01.2009 passed. They had filed appeal before this Tribunal, the said appeal was sent by postal mail bearing No. SP E 10018197709 IN, which was dispatched from Indore on 27.01.2009. It was addressed to FPA-7/BOM/2012 Page 5 of 9

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office of the CO, AUTH. NARCOTIC AND NEW DELHI, PIN 110 by Iqbal Husain Pharuki, Indore, who is one of the appellant before the Tribunal.

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The sending of appeal by post is a recognized and permissible mode, by virtue of the provisions of Rule 5 of the “Appellate Tribunal for Forfeited Property (Procedure) Rules 1989”. After filing the appeal, they were waiting to hear from the Tribunal but did not hear anything until 07.03.2012 when he got to see an auction notice which was published in daily newspaper “Bhaskar” dated 24.02.2002.

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It is also the case of the appellant that the appellants were not informed about the progress in the aforesaid appeal sent by them on 27.01.2009 and even after visiting Delhi, the appeal could not be traced out. Finding no resort, they preferred the fresh appeal on 12.03.2012 before this Tribunal by filing it on the counter directly this time i.e. the present appeal is also followed by an application seeking condonation of delay and it has been registered.

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As there was no coram available before the Tribunal on 29.03.2012, the appellants had again preferred a Writ Petition before the Hon‟ble High Court of Madhya Pradesh. The said Writ Petition was numbered as WP No. 3152/2012. The Hon‟ble High Court vide its order dated 29.03.2012 had issued notice to the respondents and directed status quo.

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It is evident that the said WP No. 3152/2012 was finally disposed of vide order dated 12.08.2013 wherein the Hon‟ble High Court had directed that in case the appellants deposit a sum of Rs. 50,000/- as cost with the department and produced the copy of the order dated 12.08.2013 in the aforesaid appeal, “the appeal shall be heard and FPA-7/BOM/2012 Page 6 of 9

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decided by the appellate authority by passing an order after giving opportunity of hearing to the petitioner as well as respondent No. 4.” It is submitted that the Hon‟ble High Court vide the said direction had decided that the present appeal be heard on merits and the question of delay and limitation shall not cause any hindrance in the hearing of the appeal.

¶45

This Tribunal on 16.09.2014 directed the Appellants to furnish exact numbers of registration of the sale-deeds and the Authorized Representative was directed to get the fact of the registration of the sale deeds in favour of the Appellants verified from the concerned Registrar of documents.

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It is not disputed by Mr. Stanly that the appellants submitted an affidavit dated 01.11.2014 furnishing details of the sale-deeds on 29.01.2015. The Respondent submitted a report of verification dated 13.01.2015, verifying that sale deeds were executed in favour of the appellants on 09.12.1994. It was also submitted in the report that on the date of freezing order dated 28/02/2000, the Appellants were owner of property situated at Plot No. 204, Khasra 309/1, Seerupur, Dhar Road, Tapara City, Indore.

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It is not specially denied by the respondent that no appeal was sent by the appellant to this Tribunal in 2009. It is also not denied that the appellants filed the second writ petition and after having considered the postal receipt and record, the said writ petition was disposed of. It is a matter of fact that before passing the final order, the present appeal was already filed.

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FPA-7/BOM/2012

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Page 7 of 9

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The final order was passed on 12.08.2013 in W.P. No. 3152/2012.

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The contents thereof are reproduced hereunder:-

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Mr. Anuj Bhargava, counsel for the petitioners.

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Mr. S.L. Nagar, counsel for the respondent No. 2.

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Mr. Maqbool Ahmed, counsel for respondent No. 4.

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The prayer in the petition is for quashment of auction sale notice published in newspaper Dainik Bhaskar on 24.02.2012.

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Brief facts of the case are that suit property which is a house was purchased by the petitioners vide registered sale deed dated 17/08/1994 from respondent No. 3 and was mutated in their name. Thereafter in a recovery initiated by Narcotics Department vide order dated 28.06.2007 the property in dispute was forfeited, against which writ petition was filed which was numbered as 2765/08 and vide order dated 12.01.2009 the Hon‟ble Madhya Pradesh High Court directed that petitioners shall be at liberty to file the appeal against the order dated 28.06.2007. In compliance of that, an appeal was filed by the petitioners on 27.01.2009 but appeal was never decided and also could not be traced. However, the appeal was sent by the petitioners by registered post. Upon their own request, petitioners filed the duplicate appeal which is still pending. In between the property has been auctioned by the department and has been purchased by respondent No. 4 on 16.03.2012. Since the notice was already published and property had already been auctioned, the appeal could not be heard and decided on merits, therefore in the facts and circumstances of the case the petition is disposed of with a short direction that in case the petitioners deposit a sum of Rs. 50,000/- as cost with the department and produce the copy of the order passed by this court, the appeal shall be heard and decided by the appellate authority by passing an order after giving an opportunity of hearing to the petitioners as well as respondent No. 4. Before passing the order, the

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FPA-7/BOM/2012

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Page 8 of 9

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present appeal was already pending. The High Court order shows that it has dealt with the issue involved.

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In view of the order passed, it is clear to us that the question of delay as raised by the respondent does not arise once the High Court has directed to hear the appeal and appellant‟s authority shall pass the order after hearing. The question delay in filing of present appeal does not arise as when the final order was passed by the High Court, the appeal was already pending.

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The cost, as directed, was paid. If we read the order dated 12.08.2013, it is evident from the last para where the direction was issued to hear the main appeal, there were no directions that before the hearing of the appeal, one had to decide the issue of delay, rather the said order indicated that now the main appeal is to be heard. Thus, the objection of the respondent about delay is rejected as the High Court has already dealt with the issue of appeal filed in 2009.

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As far as issue of freezing the property in question, it is admitted by the respondent in its report that the same was sold in 1994 by sale deed, many years prior to the date of alleged offence committed in the year 2009. The appellant is neither the accused person nor is he any relation with accused directly or indirectly. Thus, the said property is defreezed forthwith by allowing the appeal.

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No costs.

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(Justice Manmohan Singh) Chairman

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(Anand Kishore) Member

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New Delhi,

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13^th December, 2017

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„D‟ FPA-7/BOM/2012

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FPA-ND-7/BOM/2012 of Shahnaz Khan v/s The Competent Authority, Mumbai & Ors.

Case brief

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FPA-ND-7/BOM/2012 of Shahnaz Khan v/s The Competent Authority, Mumbai & Ors.

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