Writ appeal filed to challenge the High Court judgment in the original petition under SAFEMA which quashed forfeiture orders and remitted matter for readjudication due to procedural lapses. Court dismissed appeal as impugned judgment was acted upon.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 10TH DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944
WA NO. 1787 OF 2013
AGAINST THE JUDGMENT IN OP 28798/2001 OF HIGH COURT OF KERALA
DATED 16.1.2013
APPELLANTS/RESPONDENTS 1 &2:
BY ADVS.
SRI. S. MANU, DSG OF INDIA
RESPONDENT/S:
BY ADVS.
SRI. V. TEKCHAND, SR. GOVERNMENT PLEADER SMT.DIVYA RAVINDRAN SRI.V.P.NARAYANAN- FOR R1 SRI.T.M.SREEDHARAN SR.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
Dated this the 10th day of November, 2022
S. Manikumar, CJ
Before the writ court, petitioner has sought for the following reliefs:
i) to call for the records of the case leading to the issuance of Exhibits P2 and P4 orders under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction.
ii) to stay all proceedings pursuant to exhibits P2 and P4 orders, pending disposal of the Original Petition.”
The original petition was filed by the first respondent to quash the forfeiture orders issued under SAFEMA. The first respondent had suffered detention under COFEPOSA. He did not challenge his detention and the detention order was never quashed or revoked. Thus he becomes a ‘person’ as per the definition under Section-2 of the Act. Accordingly, a forfeiture notice dated
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11.1.91 under Section 6(1) of the Act was issued to the first respondent, proposing forfeiture of the properties. The affected person (AP) tendered his explanation vide his letter dated 18.2.91 giving explanation of the sources for acquisition of the property. After considering the explanation received to the show cause notice, the first appellant passed a common order dated 28.10.1998 under Section 7 (1) of the Act. The first respondent had filed appeal before Appellate Tribunal for Forfeited Property (ATFP), New Delhi, challenging the order of forfeiture passed by the first appellant. The Hon'ble ATFT agreed with the findings of the first appellant and dismissed the appeal vide order dated 30.8.2001 in F.P.A No. 69 and 61/MDS/98. Consequently, an order under Section 19 of SAFEM Act was passed on 29.3.2000 directing the persons affected to deliver possession of the property within 30 days from the date of receipt of this said order. Against these forfeiture orders, the original petition was filed before this Court.
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Authority (2007) 2 SCC 510 , and also the decisions reported in Kesar Devi v. Union of India & others [2003(7) SCC 427], Attorney General for India v. Amratlal Prajivandas [1994(5) SCC 54] and Competent Authority, SAFEMA vs. M.H. Hameed & another [2009(3) KHC 295], relied on by both parties and the material on record, writ court, vide judgment in O.P. No.28798 of 2001 dated 16.1.2013 ordered thus:
“6. I find that the documents relied on by the Department has not been supplied to the petitioners along with the show cause notice. Therefore, the petitioner was denied to file aneffective show cause and to prove his case particularly when the allegations against the petitioner was not known to him. The learned counsel for the petitioners further submitted that the Department has relied upon the report of the Income Tax Inspectors.
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Therefore, I have no hesitation to set aside the impugned orders and remit the matter to the competent authority for readjudication in accordance with law. The petitioner shall be issued with a fresh show cause notice explaining the grounds on which the Department wants to proceed against the petitioner, within two weeks from the date of appearance of the petitioner. The petitioner by himself or through his counsel shall appear before the competent authority on 15.03.2013 without any further notice. If the petitioner appears before the competent authority, he will be served with show cause notice along with relevant documents. The petitioner shall file reply to the show cause within one month from the date of supply of the relevant documents and the proceedings shall be concluded within three months thereafter. The competent authority may hold its sittings in Cochin, if requested by the petitioner.
These Original Petitions are disposed of as above.” Being aggrieved, instant writ appeal is filed.
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learned counsel for the respondent submitted that fresh show cause notice, as directed by the writ court was issued, for which reply has also been submitted. Submission of learned counsel for the respondent is placed on record.
nothing survives for further adjudication. Accordingly, writ
appeal is dismissed.
Pending interlocutory applications, if any, shall stand closed.
Sd/S. Manikumar, Chief Justice
Sd/Shaji P. Chaly, Judge
sou.
UTSAV (T. Nagar, Chennai)
Appellate Tribunal of Forfeited Property, New Delhi
M.C. Musthafa Alfajar
Income Tax Officer, Kannur
State of Kerala
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
