Delhi High Court
Amina Bi Kaskar (Deceased) vs Union Of India & Ors. on 14 July, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 14th July, 2011.
+ W.P.(C) No.1426/1999
% AMINA BI KASKAR (DECEASED) ..... Petitioner
Through: Mr. Bahar U. Barqi with Mr. D.K. Sharma,
Advocates
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Jatan Singh with Mr. Ashish Kumar
Srivastava & Mr. Kunal Kahol, Advocates
for UOI
AND
+ W.P.(C) No.1439/1999
% HASINA IBRAHIM PARKAR ..... Petitioner
Through: Mr. Bahar U. Barqi with Mr. D.K. Sharma,
Advocates
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Jatan Singh with Mr. Ashish Kumar
Srivastava & Mr. Kunal Kahol, Advocates
for UOI
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
W.P.(C) No.1426/1999 & W.P.(C)1439/1999 Page 1 of 32
RAJIV SAHAI ENDLAW, J.
1. The petitions challenge the orders dated 11th February, 1999 and 10th
February, 1999 respectively of the Appellate Tribunal for Forfeited Property
constituted under the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (SAFEMA). Mrs. Amina Bi Kaskar, the
petitioner in W.P.(C) No.1426/1999 being the mother of Mrs. Hasina
Ibrahim Parkar, the petitioner in W.P.(C) No.1439/1999, died during the
pendency of the petitions and Mrs. Hasina Ibrahim Parkar was substituted in
her place in W.P.(C) No.1426/1999 also.
2. Notice of the petitions was issued. Vide interim orders dated 11 th
March, 1999, dispossession of the petitioners from the forfeited properties
was stayed. On 28th November, 2000 and 26th March, 2001 it was further
directed that the petitioners shall not part with possession, assign, alienate or
alter the status of any of the properties in question. Rule was issued in the
petitions on 20th January, 2006. On 20th July, 2010 Mrs. Hasina Ibrahim
Parkar was directed to file an affidavit confirming that in respect of each of
the properties subject matter of the present petitions, the order dated 28th
November, 2000 was being complied with. Such an affidavit has been filed.
3. The counsel for the petitioners and the counsel for the respondent UOI
have been heard.
4. The Competent Authority under SAFEMA, vide order dated 14th July,
1998 made in exercise of powers under Section 7 of SAFEMA, held the
properties mentioned therein in the name of Mrs. Amina Bi Kaskar and
Mrs. Hasina Ibrahim Parkar being the mother and sister respectively of
Mr. Dawood Ibrahim Sheikh, being a person covered by Section 2(2)(b) of
SAFEMA, to be illegally acquired properties of Mr. Dawood Ibrahim Sheikh
and liable for forfeiture under Section 7 and accordingly ordered forfeiture
thereof and called upon Mrs. Amina Bi Kaskar and Mrs. Hasina Ibrahim
Parkar to surrender the said properties.
5. The Competent Authority vide letter dated 14th October, 1998 called
upon the petitioners to hand over vacant, peaceful physical possession of the
properties by 26th October, 1998.
6. An appeal under Rules 5 & 6 of SAFEMA (Appellate Tribunal for
Forfeited Property) Rules, 1977 was filed in the name of both Mrs. Amina Bi
Kaskar and Mrs. Hasina Ibrahim Parkar before the Appellate Tribunal
against the order aforesaid of the Competent Authority. Columns 2, 3 & 8 of
the memorandum of the said appeal were as under:-
" 2. Date of the Order
Order No.CA/BOM/II/2(b)/D-4/93-94/1500 dated 14.10.1998
and Order No.CA/BOM/II/2(b)/D-4/93-94/1117 dated 14.07.1998
3. Date of service of the Order
Order dated 14.10.1998 was served upon the Appellant on
17.10.1998 itself. Order dated 14.7.1998 was served upon the
appellant on 29/30th of July, 1998.
8. Relief claimed:
[The Appellant is disputing both the said orders, viz., Order
dated 14.10.1998 and Order dated 14.7.1998 passed by the
Competent Authority, in entirety]
It is respectfully prayed that this Learned Tribunal may
graciously be pleased to:-
(a) Condone the delay in filing the present Appeal, in so far as the
same impugned order dated 14.7.1998 passed by the Competent
Authority under Sections 7 & 19(1) of the SAFEM Act, 1976, for
the grounds for the same stated in the accompanying application
for condonation of delay;
(b) Set aside the order No.CA/BOM/II/2(b)/D-4/93-94/1117 dated
14.07.1998 and order No. CA/BOM/I/2(b)/D-4/93-94/1500 dated
14.10.1998 under SAFEMA passed by the Competent Authority is
being illegal and violative of principle of natural justice and/or;
(c) Remand the matter back to the competent authority so that the
appellants are given an opportunity for placing the relevant
material and records before it for proper adjudication of the matter
and for disposal in accordance with the law, if necessary, within a
fixed time schedule;
(d) Pending the hearing and final disposal of the appeal the orders be
stayed and the respondents be restrained from dispossessing the
appellants and interfering with their peaceful possession of the
property. [a separate application for stay of the operation of the
impugned Orders is also being filed herewith],
(e) Pass such other or further order(s) as this Learned Tribunal deems
fit and proper in the circumstances of the present case in favour of
the appellants."
7. Under the column "Grounds of Appeal" in the aforesaid appeal, under
the heading "Brief Facts of the Case" paras 5 to 10 were as under:-
"5. That the counsel for appellant no.1 had appeared before the
Competent Authority on a number of occasion including
16.02.1998 and had to ask for adjournment for two weeks as he
was busy in a Supreme Court time bound trial in the Mumbai
City Court case being Suit No.2784/96 where he was
representing defendant no.6 in the Court. On the next date of
hearing 26.02.1998, unfortunately, the counsel was still busy in
the case as the trial was going on day-to-day and could not
remain present before the Competent Authority.
6. That the counsel had placed some relevant facts before the
Competent Authority as were available with him on the said
date and had further made oral submissions relating to the
source of income of the appellant and also other factual matters
and also the fact that the Chartered Accountant of the appellant
was in the process of updating the various accounts and the
material would be placed before the Competent Authority
within a short time as soon as the assessment would be
completed by the Income Tax Officials.
7. The appellant in the end of July, 1998 received a notice
alleged to have been passed under the SAFEMA forfeiting the
property, set out therein by which order the Competent
Authority seems to have been disposed of the matter without
giving the appellant a full and complete opportunity of placing
the relevant documents to discharge the burden that has been
placed upon them of proving that the properties were purchased
from the independent sources of the parties concerned and the
properties have no nexus with the alleged illegal activities of
AP-I or had absolutely no connection or had been bought out 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. Or that the said properties were
illegally acquired properties within the clause (c), sub-section
(2) of Section 3 of the SAFEMA. The matter had been pending
before the Competent Authority since 1994 and had been listed
for hearing on 14.07.1995. Thereafter nothing had been heard
from the Competent Authority and the matter was suddenly
disposed of after a lapse of three years without giving full
opportunity to the appellants to discharge the onerous burden
that has been caused upon them particularly on an illiterate
pardanashini Muslim widow.
8. That the said order dated 14.07.1998 was received by the
appellant sometime around 29/30th of July, 1998. The appellant
no.1 who was not fully aware of the impact of the order
contacted her counsel and her Chartered Accountant and for the
first time he learnt that an order has been passed on 31 st
December, 1997 in respect of one of the property covered by
the order dated 14.07.1998 in regard to her residential flat
wherein the Commissioner of Income Tax Appeals has
subsequently found that there was no evidence brought on
record by the Assessing Authority from which it could be
inferred that fund or making investment in the said residential
flat at A-2, Gorden Hill Apartments, 105, Safaiya Zafari,
Nagpada, Mumbai, flowed from Mr. Dawood Ibrahim Kaskar
who is the brother of the appellant no.1 and has further held that
investment for the said property has been made by the appellant
and the source of funds in the same are to be considered in her
hands and the property has also been held belonging to the
appellant. A copy of the order of Commissioner of Income Tax
Appeals dated 31st December, 1997 is annexed herewith and
marked as ANNEXURE-I.
9. That the appellant no.1 learnt of the order of the C.I.T.
Appeals after she received the order of the Competent
Authority and therefore, contacted her counsel as to the next
course of action. That since the order of the Commissioner of
Income Tax Appeals related to only one property and the
forfeiture order is in relation to five others, the appellant was
making every effort to collect whatever material which would
be required for the preparation of the appeal and to explain and
discharge the burden that had been placed on them. However,
on 17.10.1998 the appellant no.1 received notice dated
14.10.1998 by which the appellant no.1 is required to hand-over
the peaceful and vacant possession of her residential flat A-2,
Gorden Hill Apartment, Sofia Sufari Road, Nagpad, Mumbai
by 26.10.1998 by handing over the key of the vacant house to
the respondents. The appellant is living in the said premises
along with her four minor children and aged mother-in-law and
other dependent members of her family, Iqbal Ismail Parkar,
Rukaiya Abdulla Parkar and Razak Abdulla Parkar.
Documents in support of their residence will be produced at the
time of hearing. The said order has been endorsed to the
Commissioner of Police, Mumbai, requesting him to give
requisite number of police force to take over possession of the
above said house on 26.07.1998.
10. That the appellants due to circumstances beyond their
control have not been able to produce the relevant material at
the date of hearing when the matter was listed last on 16.2.98
and her counsel had to seek an adjournment. Only on receipt of
the order dated 14.7.98 the appellant no.1 has now learnt that
the matter has been disposed of and practically decided ex-parte
in violation of the principles of natural justice."
8. The aforesaid appeal was accompanied with an application for
condonation of delay in filing the appeal; paras 3 to 7 of the said application
were as under:-
" 3. That under Sub-Section (4) of Section 12 of SAFEMA the
appellant are required to file the appeal within 45 days from the
date on which the order was served on him.
4. That the impugned order dated 14.7.1998, was served on the
appellant on 29/30th July, 1998, and the appellant should have
preferred an appeal within 45 days therefrom. The appellants
are illiterate and pardanashini widows and the appellant no.1
has the duty of bringing up four minor children and ailing and
aged mother who is appellant no.2 in addition to other social
obligations.
5. That the appellant no.1 in the beginning of August had to be
at Ragnagiri to attend the death anniversary prayers (fatwa)
offered to her late husband and also to attend her ailing paternal
grand-mothers at Ratnagiri and she had to extend her stay at
Ratnagiri on account of her own illness. This also kept the
appellant preoccupied and he could not promptly attend to the
collection of records and filing of the present appeal.
6. That appellant no.2 is about 78 years old and had already
suffered a paralytic stroke from which she has not fully
recovered and she is also a patient of diabetics and cannot move
around on her own. That in fact the appellant no.2 was
hospitalized recently in September, 1998 and still she is not
completely recovered and is not in a position to travel and
pursue her case.
7. That the appellant no.1 is an illiterate person and was not
fully aware of the fact that the appeal had to be preferred within
45 days itself. This she became aware of only when she came
back from Ratnagiri and she immediately started making
arrangement for filing the same."
The said application was accompanied with an affidavit of one
Mohd. Salim as the „parokar‟ of the petitioners Mrs. Amina Bi Kaskar and
Mrs. Hasina Ibrahim Parkar.
9. The Appellate Tribunal vide order dated 26th October, 1998 dismissed
the application aforesaid for condonation of delay in preferring the appeal
holding that the Appellate Tribunal has no jurisdiction to condone the delay
beyond the period of 60 days. While holding so, it was observed in paras 3,
4 & 5 of the order as under:-
"3. The order dated 14.7.1998 was served on the appellants on
29/30th July, 1998, whereas the order dated 14.10.1998 was
served on the appellants on 17.10.1998. Hence the appeal so
far as the order dated 14.7.1998 is concerned, was filed with
delay on 20.10.1998. The appellant, therefore, filed his
application for condonation of delay in presenting the appeal
against the order dated 14.7.1998.
4. Ms. Kamini Jaiswal, appearing for the appellants contended
that one of the appellants had sufficient cause for not filing the
appeal within time, as she had to attend on the paternal
grandmother at Ratnagiri. It is also stated that the appellant
no.2 is old being aged about 78 years and had suffered a
paralytic stroke and that she has been hospitalized. Appellant
no.1 is an illiterate person and was not fully aware of the
limitation prescribed.
5. The copy of the order dated 14.7.1998 was served on the
appellants on 29/30th July, 1998 and the appeal was presented
on after 20th October, 1998 on the 81st day after the service of
the order. Under Sec.12(4) of SAFEMA, an appeal against an
order under Sec.7 or sub-section (1) of Sec.9 or Sec.10 has to
be preferred within 45 days from the date on which the order is
served on the appellant. As per the proviso to sub-section 4,
the Tribunal may entertain an appeal after the expiry of the
period of 45 days, but not after 60 days, if it is satisfied that the
appellant was prevented by sufficient cause from filing the
appeal in time. Admittedly, the appeal was presented beyond
the period of 60 days."
Resultantly, the appeal aforesaid preferred by both Mrs. Amina Bi Kaskar
and Mrs. Hasina Ibrahim Parkar was not entertained.
10. Thereafter an application titled as for review/rectification of the order
dated 26th October, 1998 was filed before the Appellate Tribunal. Paras 1 to
9 of the said application were as under:-
"1. That the appellants had filed the above mentioned Appeal
alongwith an application for condonation of delay under
Section 12 of the SAFEMA against orders dated 14.10.1998
and 14.07.1998 of the competent authority, SAFEMA.
2. That the said application for condonation of delay of the
appellant has been rejected by the Tribunal as the Tribunal has
found that it has no power to entertain an application for
condonation of delay.
3. That the said Appeal had also impugned an order dated
14.10.98 passed by the competent authority under section 19 of
S.A.F.E.M.A. directing the appellant to hand over possession of
her residential house by 26.10.98. The said order had been
handed over to the daughter of the Appellant only on 17.10.98,
which was a Saturday, the next two days were holidays on
account of Diwali festival. Appeal was hurriedly filed on
20.10.98. The said appeal has been filed erroneously on the
basis that the order dated 14.7.98 had been served on the
appellant on 29.7.98.
4. That immediately on receipt of the limine order rejecting the
appeal of the Appellant the counsel applied for inspection of the
records and it has been discovered that the order dated 14.7.98
had not been served on the Appellants at all, the signature on
the acknowledgement mentions the name of the Appellant in
English a language not known to the Appellant and the
signature is of her minor daughter. The Appellant is an
illiterate pardanashin Muslim woman and in fact signs only in
urdu all documents signed by her including the Sale Agreement
and the Power of Attorney executed before respondent No.1
and this Hon‟ble tribunal have been signed in urdu only. In
Fact the appellant as already mentioned in the application for
condonation of delay was away to Ratnagiri to attend the
"fateha" ceremonies of her late husband and came back only in
September after taking care of her ailing paternal grandmother.
5. That under Sub-Section (4) of Section 12 of SAFEMA the
appellant was required to file the appeal within 45 days from
the date on which the order was served on her.
6. That the impugned order dated 14.7.1998, was as it now
turns out never served on the appellants as envisaged in Section
22 of the act and the appellant in her appeal filed on 20 th
October has erroneously mentioned that it was served on her on
29/30th July, 1998. The appeal of the Appellant was dismissed
summarily on the basis of this erroneous statement made by the
appellant.
7. That the appellant has discovered this mistake when the
records of the competent authority were inspected by her
counsel on 30.10.98 for the purpose of deciding further course
of action on rejection of her appeal. A copy of the application
moved by her counsel is annexed herewith and marked as
ANNEXURE A.
8. That thereafter the appellant on being informed that the
acknowledgement bore her name in English with some
signature in English below it. Thereafter the Appellant herself
when with her counsel to the Respondent No.1‟s office on
9.11.98 to ascertain and identify the writing and the signature
on the RPAD card, she found that the signature and writing was
that of her minor daughter Khushiya. A copy of the application
is annexed herewith and marked as ANNEXURE B. On
enquiry it was revealed by her said daughter that the envelope
was received by her by post and the postman delivering the
same had required her to put down her mother‟s name on the
card. The said A.D. card does not contain any signature of the
appellant.
9. The statement in the body of the appeal and application for
condonation of delay to the contrary is an error apparent on the
record of the case. That mistake is unintentional and bonafide
and for reasons beyond the control of the Appellant."
11. The Competent Authority under SAFEMA, in response to the
aforesaid application of the petitioners informed that the order dated 14 th
July, 1998 sent by registered post to Mrs. Hasina Ibrahim Parkar was duly
served on her on 20th July, 1998; that the order sent by registered post to
Mrs. Amina Bi Kaskar was returned back undelivered and hence the same
was affixed under Panchnama on 29th September, 1998; that the order dated
14th July, 1998 was also delivered to the Advocate for Mrs. Amina Bi Kaskar
and Mrs. Hasina Ibrahim Parkar on 22nd July, 1998; that the said Advocate
was holding unrevoked Vakalatnama from both of them and service on him
was valid service of the order.
12. At this stage, it may be stated that both Mrs. Amina Bi Kaskar and
Mrs. Hasina Ibrahim Parkar, before the Competent Authority as well as in
the appeal as well as in the application aforesaid were represented by the
same Advocate.
13. The Appellate Tribunal vide order dated 10th February, 1999
impugned by Mrs. Hasina Ibrahim Parkar in WP(C) No. 1439/99, dismissed
the application aforesaid for review/rectification holding that Section 22(a)
of SAFEMA permitted service of the order either on the person for whom it
was intended or on his agent; "admittedly, the order was not served on the
petitioners but was served on their Advocate" and holding the Advocate to
be the agent of the petitioners. It was further held that the application for
condonation of delay had been correctly dismissed vide order dated 26th
October, 1998 (supra).
14. Mrs. Amina Bi Kaskar has not challenged the aforesaid order dated
10th February, 1999 because she, while pursuing the application aforesaid for
review/rectification, also filed another appeal before the Appellate Tribunal,
again challenging the order dated 14th July, 1998 (supra) of the Competent
Authority. In the said appeal it was stated that the order dated 14 th July,
1998 had been served on her only on 17th October, 1998. It was stated in the
said appeal that she had left Bombay on 6th September, 1998 and returned
back only on 17th October, 1998 when she found the order dated 14 th July,
1998 pasted on her door. It was further stated by Mrs. Amina Bi Kaskar in
the said appeal that her daughter i.e. Mrs. Hasina Ibrahim Parkar had earlier
filed an appeal and had included Mrs. Amina Bi Kaskar‟s name also in the
memo of appeal but she had never signed any document or Power of
Attorney. The said (second) appeal was also filed through the same
Advocate.
15. The Appellate Tribunal vide order dated 11th February, 1999
impugned by Mrs. Amina Bi Kaskar in WP(C) No. 1426/99, dismissed the
aforesaid (second) appeal as barred by limitation. The Appellate Tribunal
while doing so observed that though the earlier appeal had been filed in the
name of both Mrs. Amina Bi Kaskar and Mrs. Hasina Ibrahim Parkar but
there were no signatures of Mrs. Amina Bi Kaskar on any of the
document(s) concerning the earlier appeal and as such the earlier appeal
could not be said to have been preferred by Mrs. Amina Bi Kaskar. It was
however further observed that "the learned counsel for the appellant does not
dispute the fact of service of the order on the counsel as stated by the Deputy
Director but only contends that the Advocate is not an agent of the appellant
and the service on the Advocate is not service in accordance with Section 22
of SAFEMA and hence the period of limitation cannot begin to run from
22nd July, 1998 and the question of limitation does not arise". The Appellate
Tribunal held that the Advocate is an "agent" within the meaning of Section
22(a) of SAFEMA and hence Mrs. Amina Bi Kaskar was held to have been
served on 22nd July, 1998 and the (second) appeal also held to be barred by
time.
16. The counsel for the petitioners has at the outset invited attention to
Sections 12(4) and 22 of SAFEMA and which for ready reference are
reproduced herein below:-
"12. Constitution of appellate tribunal--
(4) Any person aggrieved by an order of the competent authority
made under section 7, sub-section (1) of section 9 or section 10,
may, within forty-five days from the date on which the order is
served on him, prefer an appeal to the Appellate Tribunal:
Provided that the Appellate Tribunal may entertain any
appeal after the said period of forty-five 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.
22. Service of notices and orders.--Any notice or order issued
or made under this Act shall be served--
(a) by tendering the notice or order or sending it by registered
post to the person for whom it is intended or to his agent;
(b) if the notice or order cannot be served in the manner
provided in clause (a), by affixing it on a conspicuous place
in the property in relation to which the notice or order is
issued or made, or on some conspicuous part of the premises
in which the person for whom it is intended is known to have
last resided or carried on business or personally worked for
gain."
17. It is contended that the mode of service prescribed in Section 22 inter
alia of service on agent is not applicable to an appeal as provided under
Section 12(4), the period of limitation wherefor is to be computed from the
date of service on the aggrieved person alone and not on the agent. It is thus
contended that the orders aforesaid treating the service on the Advocate of
the petitioners to be service on the petitioners are bad.
18. I am unable to accept the said contention. Section 22 is the sole
repository for service of "any" notice or order issued or made under
SAFEMA. The order under Section 7 is an order under the Act and service
of such an order cannot be excluded from the purview of Section 22. It may
be mentioned that Section 12(1) provides for the orders of the Competent
Authority against which appeal lies to the Appellate Tribunal. Section 12(4)
provides the period of limitation for all such appeals. The appeals to the
Appellate Tribunal do not lie against any other order than those provided
under Section 12(1) and (4). If it were to be held that Section 22 does not
provide for manner of service of orders mentioned in Section 12(4), then I
wonder, for service of which orders provision is made in Section 22. Such an
interpretation would make portions of Section 22 redundant/otiose and
cannot be accepted. Section 12(4) only prescribes the date of commencement
of limitation for preferring an appeal as, from the date of service of the order
on the person aggrieved therefrom. However, how such service is to be
effected is prescribed in Section 22. Thus it cannot be said that Section
12(4) is intended to provide a special mode of service, other than that
prescribed in Section 22. This Court in Amarjit Singh Vs. Union of India
MANU/DE/1416/2001 has held that service of notices and orders under
SAFEMA is to be as per Section 22 only and the procedure of service
prescribed in Code of Civil Procedure cannot be applied. The Apex Court
also in Yakub Abdul Razak Memon Vs. Competent Authority (1997) 11
SCC 421 proceeded on the premise that mode of service of an order under
Section 7 is as prescribed in Section 22.
19. The counsel for the petitioners has not challenged the finding of the
Appellate Tribunal, of the Advocate being the agent of the client. The
Appellate Tribunal has relied on several judgments in this respect. In the
absence of any argument challenging the same having been urged, it is not
deemed appropriate to burden this judgment with discussion on the said
aspect. I may however notice that the Apex Court in Nilkantha
Shidramappa Ningashetti Vs. Kashinath Somanna Ningashetti AIR 1962
SC 666 in respect to notice under Section 14(2) of the Arbitration Act, 1940
held that the communication to the pleader of the parties that an award has
been filed is sufficient compliance with the requirement of the said provision
of giving notice to the parties concerned.
20. The counsel for the petitioners has also not made any argument on
condonation of delay beyond 60 days being not possible. Reference in this
regard can be made to the dicta in Union of India Vs. M/s Popular
Construction Co. (2001) 8 SCC 470 relating to Section 34 of the Arbitration
and Conciliation Act, 1996 where identical language as in proviso to Section
12(4) of SAFEMA was interpreted to hold that there is no power in the
Court to condone delay.
21. The counsel for the petitioners has also invited attention to the
affidavit filed by the said Advocate for the petitioners, in this Court, denying
that the order dated 14th July, 1998 was served on him on 22nd July, 1998.
No reliance can however be placed on the said affidavit. As aforesaid, the
same Advocate had before the Appellate Tribunal and as recorded in the
order dated 11th February, 1999, expressly admitted receipt of the order on
22nd July, 1998. A contradictory affidavit filed before this Court does not
inspire confidence.
22. The counsel for the petitioners has however argued that the agency of
Advocate is limited to the powers vested in him under the Vakalatnama
executed in his favour and not beyond that. Attention is invited to the
Vakalatnama filed before the Competent Authority and which is as under:-
"I, ____ do hereby appoint Mr. Pervez M. Rustomkhan,
Advocate, High Court, Bombay, to act, appear and plead for me
and on my behalf in the above matter".
23. It is contended that the same no where authorizes the Advocate to
accept copies of the order. It is also urged that the authorization in favour of
the Advocate comes to an end on culmination of the proceedings and which
before the Competent Authority culminated on 14th July, 1998 and thus the
acceptance if any of the order on 22nd July, 1998 cannot be said to be
acceptance as agent of the petitioners.
24. Per contra, the counsel for the respondent UOI has contended that the
words "to act" in the Vakalatnama aforesaid are of wide amplitude and
would encompass the authority to receive the order. It is further
controverted that the authority of the Advocate comes to an end as claimed.
It is contended that the Advocate was required to withdraw the Vakalatnama
and which admittedly was not done.
25. I tend to agree with the contention of the counsel for the respondent
UOI. The words "to act" are indeed words of wide amplitude. An Advocate
under Section 30 of the Advocates Act, 1961 is entitled as of right to practice
law inter alia before any Tribunal. The expression „right to practice‟
includes both pleading and to act as held in Aswini Kumar Ghosh Vs.
Arabinda Bose AIR 1952 SC 369. The Supreme Court in Jamilaben Abdul
Kadar Vs. Shankarlal Gulabchand AIR 1975 SC 2202 held that the right of
the Advocate to practice i.e. to act, also included the authority to
settle/compromise the lis on behalf of the client. In the face of such authority
of the Advocate, it cannot be said that the Advocate, though authorized to
settle/compromise on behalf of the client, has no authority to take delivery of
the order on behalf of the client. The Division Bench of the Punjab &
Haryana High Court in S. Maharaj Baksh Singh Vs. Charan Kaur
AIR 1987 Punjab & Haryana 213 held that a lawyer is understood to embody
his client in his own person.
26. Moreover, the contemporaneous conduct of the parties in the present
case i.e. of both Mrs. Amina Bi Kaskar and Mrs. Hasina Ibrahim Parkar as
well as the Advocate also demonstrates that they all understood that the
Advocate was the agent for receiving the orders. Had the Advocate not
treated himself so empowered to accept the order, he would not have
accepted the order. Not only so, the same Advocate thereafter preferred the
appeal to the Appellate Tribunal also. The appeal was preferred on behalf of
Mrs. Amina Bi Kaskar also even though stated to be not bearing her
signatures. The affidavit accompanying the appeal, as aforesaid was signed
not by Mrs. Hasina Ibrahim Parkar also but by the „parokar‟. The
relationship of the two petitioners being that of mother and daughter and
there being nothing contrary, the „parokar‟ is deemed to have represented
both the petitioners. The Advocate also on the basis of the Vakalatnama
earlier given in his favour considered himself empowered to even prefer the
appeal on behalf of Mrs. Amina Bi Kaskar. Both the petitioners availed
benefit of the said appeal. They obtained interim orders restraining taking
over of the possession. After having availed such benefits, they cannot be
heard to contend otherwise.
27. It is a well established principle of civil law that the Vakalatnama
issued to the Advocate enures in appeal arising from the original proceedings
(See Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh (2006) 1 SCC
75). I find no reason not to apply the same to the proceedings under
SAFEMA also.
28. In this regard I may also notice that the Appellate Tribunal for
Forfeited Property (Procedure) Rules, 1986 while prescribing the procedure
for filing appeals and petitions, in Rule 5(1) prescribe the Memorandum of
Appeal to be in the form annexed to the said Rules and in Rule 5(6)
prescribe for the Memorandum of Appeal to be presented by the appellant in
person or where there are more appellants than one, by any of them or by his
authorized representative. The explanation thereto includes a legal
practitioner authorized to appear on behalf of the appellant in the expression
"authorized representative". The Rules no where require the appeal to be
signed by the appellant(s) and Rule 5(9) requires the petition to be
accompanied by an affidavit. In the present case as aforesaid in the (first)
appeal, the affidavit was of the „parokar‟ of both Mrs. Amina Bi Kaskar and
Mrs. Hasina Ibrahim Parkar. The Rules no where provide for the filing of
Vakalatnama signed by the appellants. The Form of the Memorandum of
Appeal annexed to the Rules requires the signature of the appellant and
which as per Rule 5(6) would mean where there are more than one
appellants, signature of any one appellant or his authorized representative.
The (first) appeal preferred in the name of both Mrs. Amina Bi Kaskar and
Mrs. Hasina Ibrahim Parkar was thus an appeal by both of them and did not
cease to be an appeal by Mrs. Amina Bi Kaskar merely because the same did
not bear her signatures. As aforesaid, signature by one appellant i.e. Mrs.
Hasina Ibrahim Parkar, under the Rules aforesaid, was enough. Thus, the
(second) appeal preferred by Mrs. Amina Bi Kaskar in any case was not
maintainable and Mrs. Amina Bi Kaskar was fully bound by what was stated
in the (first) appeal of having been served with the order of the Competent
Authority in the end of July, 1998 and Mrs. Amina Bi Kaskar could not be
permitted to reprobate.
29. Significantly, the petitioners did not take any action whatsoever
against their Advocate. Rather, the Advocate remained hand in glove with
the petitioners and filed affidavit in these proceedings supporting the case of
the petitioners. The recent view of this Court has been that a litigant cannot
take the shield of his Advocate. As aforesaid, the petitioners have been
availing the services and benefits of the actions of the Advocate and cannot
now be heard to contend that the Advocate was authorized to do one act but
not to do another.
30. This Court had vide earlier order directed production of the records of
the Competent Authority as well as the Appellate Tribunal. A perusal
thereof shows that service by affixation was also affected on both the
petitioners.
31. I am thus satisfied that there is nothing requiring interference of this
Court in exercise of powers under Article 226 of the Constitution of India in
either of the orders impugned in these petitions. The petitioners in the (first)
appeal preferred before the Appellate Tribunal unequivocally admitted
service upon them of the order of the Competent Authority in the end of the
month of July, 1998. The said (first) appeal even though not bearing the
signature of Mrs. Amina Bi Kaskar was an appeal by her also inasmuch as
the Rules aforesaid permit an appeal by more than one appellant to be
presented by one of the appellants only. The (first) appeal itself was
preferred beyond the period of 60 days from such service and was
accompanied by an application for condonation of delay and which
condonation was not permissible. The averments in the (first) appeal and in
the application for condonation of delay filed therewith expressly related to
the petitioner Mrs. Amina Bi Kaskar also and the petitioners could not
subsequently be heard to contend that the said appeal was not by the
petitioner Mrs. Amina Bi Kaskar. The Advocates who appeared in the (first)
appeal also raised arguments on behalf of the petitioner Mrs. Amina Bi
Kaskar, as recorded in the order dated 26th October, 1998 supra and such
arguments must have been made under instructions from both Mrs. Amina
Bi Kaskar and Mrs. Hasina Ibrahim Parkar. Rather, the application for
review/rectification was beyond the scope of review and sought to withdraw
admissions made earlier in the Memorandum of Appeal and in the
application for condonation of delay and without making out any case for
withdrawal of such admissions. It is inconceivable that the date of the
service of the order would have been mentioned as in end of July, 1998
without the same having been so served. No explanation whatsoever was
furnished as to how it came to be stated that the order was so served in the
end of July, 1998 on both Mrs. Amina Bi Kaskar and Mrs. Hasina Ibrahim
Parkar if the same had not been so served. Once the petitioners are held to be
bound by the said admissions, the application for review/rectification and the
(second) appeal, the orders whereon are under challenge, were
misconceived.
32. The entire conduct of the petitioners in the present cases also does not
entitle the petitioners to the exercise of discretion vested in this Court under
Article 226 of the Constitution of India in their favour. The petitioners as
aforesaid first admitted receipt of the order by both of them in the end of
July, 1998 and sought condonation of delay in preferring the appeal. Upon
being unsuccessful, they turned turtle and denied receipt of order as earlier
admitted by them. Not only so, Mrs. Amina Bi Kaskar took contradictory
stand. She on the one hand continued to pursue the application for
review/rectification in the appeal filed along with her daughter Mrs. Hasina
Ibrahim Parkar and simultaneously filed a fresh appeal denying that the
earlier appeal was under her authority. Litigants who indulge in such
practices do not deserve any sympathy from this Court. The Supreme Court
in S. P. Chengalvaraya Naidu Vs. Jagannath AIR 1994 SC 853 has held
that unscrupulous persons are abusing the process of this Court and should
be dealt with sternly.
33. The petitioners today also continue to be represented by one Advocate
only. They have throughout been pursuing the proceedings together and the
averments now made are mala fide.
34. The petitioners in the manner aforesaid have throttled the order of
forfeiture of properties for the last nearly 13 years. No case for
review/rectification as sought to have been made, was made out. Without the
service of the order on the petitioners as admitted by them in the appeal first
filed, they could not have preferred the appeal. The counsel for the
petitioners had no reply when confronted with as to how the appeal was
preferred and the copy of the order filed with the first appeal received, if not
as admitted therein.
35. The counsel for the petitioners has laid much emphasis on the copy of
the passport of Mrs. Amina Bi Kaskar filed before this Court on the basis
whereof it is contended that the appeal subsequently filed by Mrs. Amina Bi
Kaskar in her own name was within the prescribed time from the date of her
return to India. However in view of the above discussion, the said argument
has no merits. Even if Mrs. Amina Bi Kaskar was abroad, the period of
limitation began to run from the service on her agent and/or service in
accordance with Section 22(b) of the Act. In fact the same is intended to
take care of such situations only.
36. At this stage, notice may be taken of a preliminary objection of the
counsel for the respondent UOI. He has with reference to Mahesh Kantilal
Zaveri Vs. Union of India 2010 VII AD (Delhi) 804 challenged the very
maintainability of the writ petition. This Court in the said judgment on the
basis of Attorney General Vs. Amratlal Prajivandas (1994) 5 SCC 54 held
that until and unless the detention order under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 is successfully
challenged, the basis of subsequent forfeiture order under SAFEMA cannot
be questioned. It is contended that Mr. Dawood Ibrahim Sheikh whose
relatives within the meaning of Section 2(2)(c) the petitioners are and owing
to detention order against whom the order of forfeiture of properties made,
had not even challenged the detention order; the forfeiture effected cannot
thus in any way be questioned.
37. The counsel for the petitioners has not been able to respond to the said
argument also.
38. There is thus merit in the said contention also of the counsel for the
respondent UOI and the petitions are liable to be dismissed on this
preliminary ground as well.
39. The counsel for the respondent UOI has also contended that no
grounds as taken at the time of hearing qua Sections 12(4) and 22 have been
urged in appeal. It is also informed by way of abundant caution though has
not been argued by the counsel for the petitioners that the Division Bench of
this Court in Ashok Kumar Vs. Competent Authority 2001 (1) JCC (Delhi)
193 has held that the order under SAFEMA is independent of the orders
under the Income Tax Act.
40. There is thus no merit in the petitions; the same are dismissed and the
interim orders earlier granted stand vacated. The petitioners have, by
abusing the process of the Court, delayed delivery of possession of the
forfeited properties as aforesaid for the last 13 years. The petitioners are
accordingly burdened with costs of `1,00,000/- each and are directed to on
or before 14th August, 2011 put the respondents into possession of the
properties and do everything in compliance of the order dated 14 th July, 1998
and the respondents are directed to forthwith take over properties in terms of
the order dated 14th July, 1998 of the Competent Authority.
RAJIV SAHAI ENDLAW
(JUDGE)
JULY 14, 2011/bs
(corrected and released on 27th July, 2011)
