Dismissed

Haridas v. Competent Authority,Smugglers & Foreign Exchange Manipulators

Kerala HC2 Mar 2023WP(C)/337/2012

Case brief

AI extract

What is this about?

The Court dismissed three writ petitions filed by purported bona fide purchasers. It held that purchases made after a Section 6 notice under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 1976 are null and void, regardless of the purchaser's lack of notice.

What did the court decide?

Petition for cancellation of government orders declaring properties as forfeited was rejected; petitioners may sue for damages against the original owner.

Haridas Vs Competent Authority,Smugglers & Foreign Exchange… — Money Laundering | Kerala HC (2023)

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THURSDAY, THE 2ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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WP(C) NO. 34751 OF 2011

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PETITIONERS:

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1P.VASUDEVAN
VARUVILA VEEDU, POOTHAKKULAM P.O.,PARAVOOR, KOLLAM
DIST

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2 REMA BHAI W/O.VASUDEVAN, VARUVILA VEEDU, POOTHAKKULAM P.O.,PARAVOOR, KOLLAM DIST

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3 VIJI S/O.VASUDEVAN,VARUVILA VEEDU, POOTHAKKULAM P.O.,PARAVOOR, KOLLAM DIST

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4 VALSA THENGUVILA VEEDU, ELAKAMON P.O.,AYROOR VILLAGE,VARKALA BY ADVS.SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED

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RESPONDENTS:

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1COMPETENT AUTHORITY
SMUGGLERS AND FOREIGN EXCHANGE
MANIPULATORS(FORFEITURE OF PROPERTY)UTSAV,
NO.64/1,G.N.CHETTY ROAD, T.NAGAR, CHENNAI-6000017

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2 DISTRICT COLLECTOR THIRUVANANTHAPURAM-695001

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BY ADVS.SRI.P.PARAMESWARAN NAIR,ASG OF INDIA ASSISTANT SOLICITOR GENERAL

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THURSDAY, THE 2ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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WP(C) NO. 34985 OF 2011

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PETITIONER:

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KUMUDA BHAI

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W/O.LATE RAMAN,VIJAYAMANDIRAM,ELAKAMON P.O,AYROOR
P.O,VARKALA

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BY ADVS.
SRI.P.A.AHAMMED
SRI.THOUFEEK AHAMED

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RESPONDENTS:

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1COMPETENT AUTHORITY,
SMUGGLERS AND FOREIGN EXCHANGE
MANIPULATORS(FORFEITURE OF
PROPERTY),UTSAV,NO.64/1,G.N.CHETTY
ROAD,T.NAGAR,CHENNAI 600 017

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2DISTRICT COLLECTOR
THIRUVANANTHAPURAM 695 005

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BY ADVS.

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SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
ASSISTANT SOLICITOR GENERAL
SUVIN R MENON

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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THURSDAY, THE 2ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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WP(C) NO. 337 OF 2012

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PETITIONER:

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HARIDAS
AGED 58 YEARS
S/O.VELU, CLAVANA VEEDU, AYROOR VILLAGE,ELAKAMON
P.O., VARKALA.

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BY ADVS.
SRI.P.A.AHAMMED
SRI.THOUFEEK AHAMED

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RESPONDENTS:

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1 COMPETENT AUTHORITY,SMUGGLERS & FOREIGN EXCHANGE MANIPULATORS (FORFEITURE OF PROPERTY), UTSAV, NO.64/1, G.N CHETTY ROAD,T.NAGAR, CHENNAI-600 017.

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2 THE DISTRICT COLLECTOR THRIUVANANTHAPURAM. PIN-695 001

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BY ADVS.
SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
ASSISTANT SOLICITOR GENERAL
SRI.P.VIJAYAKUMAR
S.MANU (DSGI)

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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JUDGMENT

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Dated this the 2^nd day of March, 2023

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This order of mine shall dispose of three writ petitions bearing Nos.34751 of 2011, 34985 of 2011 and 337 of 2012. In all these writ petitions, petitioners have purchased property from erstwhile owner in 1983, 1992 and 1984. The question of law which arises for adjudication in these cases is whether the petitioners are bonafide purchasers of the properties from the erstwhile owner who had already been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and in view of the notice issued under Section 6 of the Smugglers & Foreign Exchange Manipulators (Forfeiture of Property) Act 1976, any sale made thereafter would be null and void or not.

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The property at the hands of all the petitioners

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were earlier owned by Smt.Thankamma and her husband Shri.O.Raghavan. Smt.Thankamma suffered detention

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Accordingly proceedings under Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act, 1976 were initiated against Smt.Thamkamma and Shri.O.Raghavan for forfeiture of the illegally acquired properties held by them. During the aforementioned proceedings both Smt.Thankamma and Raghavan expired and Shri.R.S.Kumar and Smt.Shyamakuary, son and daughter were impleaded. Since the properties were alleged to have been purchased from the persons of crime, the they were attached by issuing a notice of forfeiture dated 19/20.06.1978.

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After due process of law, an order under Section 7(1) of SAFEM (FOP) A in OCA/MDS/1520/78 dated 31.03.1997 was passed by the Competent Authority, forfeiting the illegally acquired properties of Raghavan to the Government of India free from all encumbrances. The

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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aforementioned order was assailed by the legal heirs of Raghavan before the Appellate Tribunal for forfeited property, New Delhi. The Appellate Tribunal vide order dated 20.05.1998 dismissed the appeal. That order was also assailed before the High Court, New Delhi, which has also been dismissed.

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Petitioners are claiming to be bonafide purchasers of the property on the premise that when they purchased the property after making a reasonable enquiry, there was no order of forfeiture in the records of the revenue giving suspicion or deterrence for the purchase of the property. They purchased the property with wide eyes opened as it was not encumbered.

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Learned counsel appearing on behalf of the petitioners submitted that the order of the Government of India dated 09.08.2011 reflecting the property to be escheated or in the ownership of the Government for free of the encumbrance is bad in law as the act is came in to

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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force only in 1976 and there was no forfeiture notice for the sake of the repetition except for notice under Section 6, thus the provisions of Section 11 of the Act, declaring any sale to be null and void cannot be pressed into service by this Court.

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On the other hand, Sri.Parameswaran Nair, the learned counsel for the respondents submitted that the notice under Section 6 of June, 1978 and for forfeiture, of 31.3.1997 would reveal that LRs of the erstwhile owners of the property remained unsuccessful in overcoming the rigours of the 1976 Act. Once those proceedings have already been upheld, the proxy litigation at the behest of the subsequent purchaser would not be maintainable, at the best they are entitled to an independent relief of damages against the erstwhile owner in accordance with law. The Act as per the judgment of the Supreme Court would have a retrospective effect in view of the definition of Section 3 (1) (C ) of the 1976 Act and urged this court

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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for dismissal of the writ petitions.

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Section 3(1) (C), 6, 7 and 11 of 1976 Act reads as

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follows:

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Section 3(1) (C):

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“3. Definitions .- (1) In this Act, unless the context otherwise requires, -

(a) xxxxxxxxxxxxx

(b) xxxxxxxxxxxxxxx

(i) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws; or

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(ii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets in respect of which any such law has been contravened; or

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(iii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets the source

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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of which cannot be proved and which cannot be shown to be attributable to any act or thing done in respect of any matter in relation to which Parliament has no power to make laws; or

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(iv) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in sub-clauses (i) to (iii) or the income or earnings from such property;

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and includes-

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(A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration;

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(B) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom; (d) “prescribed" means prescribed by rules made under this Act;

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(e) “property” includes any interest in property, movable or immovable;

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(f) “trust" includes any other legal obligation.”

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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Section 6:

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“6. Notice of forfeiture. -(1) 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 sources of income, earnings or assets, any other information or material available to it as a result of action taken under 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.

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(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.”

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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Section 7 :

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“7. Forfeiture of property in certain cases .-(1) 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.

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(2) Where the competent authority is satisfied that some of the properties referred to in the show cause notice are illegally acquired properties but is not able to identify specifically such properties, then, it shall be lawful for the competent authority to specify the properties which, to the best of its judgment, are illegally acquired properties and record a finding accordingly under sub-section (1).

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(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.

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(4) Where any shares in a company stand forfeited to the Central Government under this Act, then, the company shall, notwithstanding anything contained in the Companies

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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Act, 1956 (1 of 1956), or the articles of association of the company, forthwith register the Central Government as the transferee of such shares.”

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Section 11:

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“11. Certain transfers to be null and void .-Where after the issue of a notice under section 6 or under section 10, any property referred to in the said notice is transferred by any mode whatsoever such transfer shall, for the purposes of the proceedings under this Act, be ignored and if such property is subsequently forfeited to the Central Government under section 7, then, the transfer of such property shall be deemed to be null and void.”

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Perusal of the aforementioned provisions reveals that even if the Act had come in to place in 1976, it would have a retrospective effect in respect of the properties acquired before the commencement of the Act.

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Concededly in the present case, the notice of the forfeiture under Section 6 was issued on 19/20.06.1978. The language of the aforementioned Section, read with Section 11 leaves no manner of doubt that if the notice under Section 6 is issued, any exchange of the property subsequent thereto in the

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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absence of order of the forfeiture would be null and void. Petitioners at relevant point of time, that is 1978, when the notice under Section 6 was issued, were not in the picture. In other words, they had not acquired any right over the property held or owned by the erstwhile owner.

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The LRs of the erstwhile owners had also been unsuccessful before the Appellate Tribunal and as well as the High Court of New Delhi, against the order of the forfeiture. In this view of the matter, the petitioners would not have any grievance challenging the communication dated 09.08.2011 of the Government of India, Ministry of Finance informing them of taking over of the forfeited properties being escheated or in the ownership of the Government.

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11. P etitioners cannot claim any compliance of the principles of natural justice, for, the order of forfeiture was passed in 1997 and they did not come forward before the Competent Authority dealing with the forfeiture nor their particulars were disclosed by the erstwhile owner. Once the provisions under Section 11 envisage the declaration of the

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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property to be sold after issuance of the notice becomes null and void, there cannot be any substance in the argument of affording any opportunity of being heard. In other words, no person can claim ignorance of law, in view of the provisions of Section 78 of the Indian Evidence Act, 1872.

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Writ petitions are devoid of merit, accordingly dismissed. However, this order will not take away the valuable rights of the petitioners to take the remedy of damages against the erstwhile owner in accordance with law.

Sd/-

AMIT RAWAL JUDGE

mtk

W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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APPENDIX OF WP(C) 34751/2011

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`PETITION` `EXHIBIT`	`ER EXHIB` `P1`	`ITS` `TRUE COPY OF SALE` `REGISTRAR OFFICE,`	`DEED NO.3547/1983 OF SUB` `VARKALA DATED 20.08.1983`
`EXHIBIT`	`P2`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `01.02.1983.`	`DEED NO.510/1983 OF SUB` `VARKALA DATED`
`EXHIBIT`	`P3`	`TRUE COPY OF SETT` `OF SUB REGISTRAR` `17.07.1996`	`LEMENT DEED NO.2726/1996` `OFFICE, VARKALA DATED`
`EXHIBIT`	`P4`	`TRUE COPY OF SETT` `OF SUB REGISTRAR` `17.07.1996`	`LEMENT DEED NO.2727/1996` `OFFICE, VARKALA DATED`
`EXHIBIT`	`P5`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,`	`DEED NO.704/1971 OF SUB` `VARKALA DATED 01.03.1971`
`EXHIBIT`	`P6`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `05.11.1951.`	`DEED NO.5563/1951 OF SUB` `VARKALA DATED`
`EXHIBIT`	`P7`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `06.09.1963.`	`DEED NO.5133/1963 OF SUB` `VARKALA DATED`
`EXHIBIT`	`P8`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `07/07/1967.`	`DEED NO.2867/1967 OF SUB` `VARKALA DATED`
`EXHIBIT`	`P9`	`TRUE COPY OF SALE` `SUB REGISTRAR OFF` `03.10.1963.`	`DEED NO. 4494/1966 OF` `ICE, VARKALA DATED`
`EXHIBIT`	`P10`	`TRUE COPY OF THE` `09.01.1996`	`TAX RECIPT NO.91 DATED`

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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`EXHIBIT P11`	`TRUE` `16.07`	`COPY` `.199`	`OF THE` `6`	`TAX`	`RECIPT NO.64 DATED`
`EXHIBIT P12`	`TRUE` `22.10`	`COPY` `.199`	`OF THE` `6`	`TAX`	`RECIPT NO.46 DATED`
`EXHIBIT p13`	`TRUE` `DATED`	`COPY` `03.`	`OF THE` `03.2010`	`TAX`	`RECIPT NO.0384342`
`EXHIBIT P14`	`TRUE` `DATED`	`COPY` `09.`	`OF THE` `08.2011`	`LETT` `19/0`	`ER NO.OCA/MDS.1520/78` `2/2004`

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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APPENDIX OF WP(C) 34985/2011

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`TRUE COPY` `REGISTRAR`	`OF SALE` `OFFICE,`	`DEED NO.5080/1992 OF SUB` `VARKALA DATED 23.12.1992`
`EXHIBIT P2`	`TRUE COPY` `REGISTRAR`	`OF SALE` `OFFICE,`	`DEED NO.5460/1992 OF SUB` `VARKALA DATED 23.12.1992`
`EXHIBIT P3`	`TRUE COPY` `REGISTRAR`	`OF SALE` `OFFICE,`	`DEED NO.5464/1992 OF SUB` `VARKALA DATED 23.12.1992`
`EXHIBIT P4`	`TRUE COPY` `REGISTRAR`	`OF WILL` `OFFICE,`	`NO.32/1985 OF SUB` `VARKALA DATED 27.03.1985`
`EXHIBIT P5`	`TRUE COPY` `01/11/85.`	`OF THE`	`TAX RECEIPT NO.12 DATED`
`EXHIBIT P6`	`TRUE COPY` `REGISTRAR`	`OF SALE` `OFFICE,`	`DEED NO.1581/1964 OF SUB` `VARKALA DATED 01.04.1964`
`EXHIBIT P7`	`TRUE COPY` `SUB REGIS`	`OF SALE` `TRAR OFF`	`DEED NO.3581/1115 ME OF` `ICE, VARKALA`
`EXHIBIT P8`	`TRUE COPY` `DATED 09.`	`OF THE` `08.2011.`	`LETTER NO.OCA/MDS.1520/78`

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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APPENDIX OF WP(C) 337/2012

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PETITIONER EXHIBITS

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`EXHIBIT P1`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `08/02/1984.`	`DEED NO.626/1984 OF SUB` `VARKALA DATED`
`EXHIBIT P2`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `14/02/1984.`	`DEED NO.710/1984 OF SUB` `VARKALA DATED`
`EXHIBIT P3`	`TRUE COPY OF THE` `DATED 11/11/11.`	`TAX RECEIPT NO.0106361`
`EXHIBIT P4`	`TRUE COPY OF THE` `30/01/90.`	`TAX RECEIPT NO.3 DATED`
`EXHIBIT P5`	`TRUE COPY OF THE` `01/11/85.`	`TAX RECEIPT NO.12 DATED`
`EXHIBIT P6`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `13/06/1967.`	`DEED NO.2489/1967 OF SUB` `VARKALA DATED`
`EXHIBIT P7`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `15/06/1967.`	`DEED NO.2511/1967 OF SUB` `VARKALA DATED`
`EXHIBIT P8`	`TRUE COPY OF SALE` `REGISTRAR OFFICE,` `07/07/1967.`	`DEED NO.2867/1967 OF SUB` `VARKALA DATED`
`EXHIBIT P9`	`TRUE COPY OF SALE` `SUB REGISTRAR OFF` `23/10/1970.`	`DEED NO. 4288/1970 OF` `ICE, VARKALA DATED`
`EXHIBIT P10`	`TRUE COPY OF THE` `DATED 09/08/2011.`	`LETTER NO.OCA/MDS/1520/78`

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W.P.(C) Nos. 34751, 34985 of 2011 and 337 of 2012

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`EXHIBIT`	`P11`	`TRUE COPY OF THE APPLICATION UNDER RIGHT` `TO INFORMATION ACT DATED 16/01/2012.`
`EXHIBIT`	`P12`	`TRUE COPY OF THE LETTER` `F.NO.OCA/MDS/RTI.2011 DATED 13/02/2012.`
`RESPONDE`	`NT EXHIBITS`
`EXHIBIT`	`R1(a)`	`TRUE COPY OF LETTER DATED 19-20/06/1978` `ISSUED TO SHRI O. RAGHAVAN.`
`EXHIBIT`	`R1(b)`	`TRUE COPY OF NOTICE DATED 31.03.1997` `19/02/2004 ISSUED BY THE COMPETENT` `AUTHORITY.`
`EXHIBIT`	`R1(c)`	`TRUE COPY OF THE ORDER DATED 20/05/1998` `ISSUED BY ATFP, NEW DELHI.`
`EXHIBIT`	`R1 (d)`	`TRUE COPY OF ORDER DATED 15/07/1998 ISSUED` `TO THE 2ND RESPONDENT.`
`EXHIBIT`	`R1(e)`	`TRUE COPY OF ORDER DATED 09/07/2002 IN WPC` `NO.714/1998 OF THE HONOURABLE HIGH COURT` `OF DELHI.`
`EXHIBIT`	`R1 (f)`	`TRUE COPY OF LETTER DATED 09/02/2004` `ISSUED BY THE 2ND RESPONDENT.`
`EXHIBIT`	`R1 (g)`	`TRUE COPY OF LETTER DATED 09/02/2004` `ISSUED BY THE COMPETENT AUTHORITY`

Haridas v. Competent Authority,Smugglers & Foreign Exchange Manipulators

Case brief

What is this about?

What did the court decide?

Haridas v. Competent Authority,Smugglers & Foreign Exchange Manipulators

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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