Sh. Amanbir Singh And Sh. Amlok ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 452 Del

JUDGMENT

S.K. Mahajan, J.

1. As common questions of law and fact are involved in these two writ petitions, they are being disposed of by this common order.

2. By order dated 19th December, 1974, one Mehain Singh was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. He was alleged to be involved in smuggling of gold, opium etc. from Pakistan and Cardamom, clothes, Indian currency notes from India to Pakistan. He was also indulging in supply of intelligence regarding deployment of Indian Army and B.S.F. Units and other vital installations to the Army and C.I.D. Officers in Pakistan. During interrogation of certain Pak smugglers detained by the police, it was allegedly revealed that Mehain Singh, his son Kashmira Singh and nephew Makhan Singh had smuggled contraband gold worth Rs. 15,26,00,000/- between the period August, 1968 to 1970. On receipt of information and on making inquiries and investigations it was revealed that certain properties were purchased by the aforesaid Mehain Singh. Reasons under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short referred to as the SAFEMA) were accordingly recorded by the competent authority under the Act and notice under Section 6(1) of the Act was issued to the Affected Person on 4.11.1977 requiring him to indicate the sources of his income and assets etc. out of which or by means of which he had made investment in the purchase of land measuring 68 kanals, 11 marlas bearing Khasra/Khatauni No. 95 in village Nathupur, Distt. Amritsar. These notices were sent to Mehain Singh's son Vir Singh as well as to one Kewal Singh who was his nephew. Objections to the notices under Section 6(1) issued to the aforesaid two persons were filed by both Kewal Singh as well as Vir Singh. In none of the objections any of the two persons, namely, Vir Singh or Kewal Singh had taken the plea that after purchase of the property by them they had entered into a settlement with their uncle, namely, Puran Singh or that after the settlement these persons did not have any right, title or interest in the said property. In fact these notices were challenged right up to the Supreme Court. It is stated in the counter-affidavit that the Affected Persons Along with other family members had filed a writ petition before the Supreme Court which was disposed of Along with the case of Attorney General of India etc. Vs. Amratlal Prajivandas and others with the directions that the pending cases should be disposed of in the light of the observations made in that judgment. After the disposal of the writ petition by the Supreme Court, the Competent Authority on 16th November, 1995 passed an order directing the forfeiture of 1/5th share of each of the petitioners in the land measuring 68 kanals, 11 marlas in Khasra/Khatauni No. 95 village Nathupura, Distt.Amritsar and 4/25th share of agricultural land measuring 158 kanals, 75 marlas in village Ganda Singh Wala Amritsar. On passing of this order, the competent authority on 13th December, 1995 directed the aforesaid effected persons to surrender and deliver within 30 days the possession of the aforesaid properties to the District Magistrate/Collector, Amritsar. These orders in so far as they related to land in village Nathupura, District Amritsar have now been challenged by the petitioner by filing these two writ petitions.

3. The contention of learned counsel for the petitioner is that the Affected Persons to whom notices were sent by the Competent Authority did not have any right, title or interest in the property in question as after its purchase by the Affected Persons, their father had entered into a family settlement with the predecessor-in-interest of the petitioners on 21st September, 1973 whereby the property in question had fallen entirely to the share of the predecessor-in-interest of the petitioners and consequently no order could be passed by the competent authority directing forfeiture of that property, nor any order could be passed for his surrender to the District Magistrate/Collector, Amritsar. It is submitted that the competent authority had no jurisdiction to pass the order in question and in any case as the petitioners and their predecessor-in-interest were holding the property since about 1972 and they were in actual possession thereof, no order under the Act could be passed without issuing notice under Section 6(2) of the Act to the petitioners. It is also the submission of learned counsel for the petitioner that assuming the family settlement was not binding upon the Affected Persons, as they were not parties to the same, the petitioners had in any case become owner by adverse possession and consequently they could not be dis-possessed from the land in question pursuant to the order dated 16th November, 1995 passed under Section 7 of the Act.

4. I am not impressed with the arguments advanced by learned counsel for the petitioner. Notice for the first time was issued to the Affected Persons in 1977 who not only filed the objections to the notice under Section 6(1) of the Act but also challenged the notices right up to the Supreme Court. It is only after remand of the case in 1995 that proceedings under the Act were re-commenced by the competent authority. Neither in the objections filed by the Affected Persons before the competent authority, nor in the proceedings before the Supreme Court any plea was taken that the property in question did not belong to them or that the same, by virtue of a family settlement, had devolved upon the predecessor-in-interest of the petitioners. It is difficult to believe that a person who is not even the owner of the property would take the matter right up to the Supreme Court and would fight it out for twenty long years. The family settlement is not even signed by any of the Affected Persons nor it is registered. Though it is contended by learned counsel for the petitioner that Mr. Mehain Singh the predecessor-in-interest of the Affected Persons had signed the family settlement and the competent authority himself has held in the orders forfeiting the property that the same was purchased by the ill-gotten money, the family settlement would be binding upon the Affected Persons, in my opinion, this argument does not hold inasmuch as the alleged family settlement does not even mention that Mehain Singh had signed the same in his capacity as real owner of the property or that the property was purchased benami in the name of the Affected Persons. Moreover, the affected persons had nowhere either in the objection or in the proceedings in the Supreme Court or even in appeal filed against the order of the competent authority forfeiting the property mentioned that they were holding the property benami for the detenu Mehain Singh. In any case the family settlement is not even registered and the same, therefore, does not inspire any confidence. The family settlement appears to have been prepared only with a view to circumvent the proceedings against Mehain Singh for his unlawful activities. Notices to the affected persons under Sections 6 and 7 of the Act were issued at the address where the petitioners allegedly reside. Notices were even pasted on the property. It is, therefore, unbelievable that the petitioners were not aware of the proceedings against the affected persons. No explanation has been given as to why the petitioners did not oppose the notices before the Competent Authority. Though it is the contention of learned counsel for the petitioner that the family settlement had been acted upon and the property was mutated in the name of the predecessor-in-interest of the petitioner but the same in my view will not confer any right either upon the petitioners or upon their predecessor-in-interest. By way of the alleged family settlement immovable property is sought to be transferred and the same could not be done in the manner it is sought to be done.

5. It is lastly contended by learned counsel for the petitioner that the petitioner in any case had become owner by adverse possession as his possession was not challenged by the persons who were in a position to challenge the same. This argument also has no force. The Affected Persons who were the recorded owners of the property had been challenging the proceedings of forfeiture of property in question right up to the Supreme Court and till such time the order was passed by the competent authority in 1995 they were claiming themselves to be the owner of the property. The appeal against the order of forfeiture was dismissed on April 15, 1998. It is clearly shows that the petitioners could not be said to be in uninterrupted possession or hostile possession of the property as the recorded owners were claiming themselves to be the owners of the same till about 1998. Even otherwise the question as to whether or not the petitioners had become owners by adverse possession is not a question to be decided either by the competent authority or by this Court. The present petition appears to be an attempt to delay the proceedings which had started as early as in 1977. The battle it appears, is being fought by the petitioners as proxy for Mehain Singh, Vir Singh and Kewal Singh. The petitioners, in my opinion, have no right, title or interest in the property in suit and cannot challenge the order passed by the competent authority under Section 7 of the Act. The petitions are clearly an abuse of the process of the Court and are, accordingly, dismissed with costs assessed at Rs. 5,000/- each.