Sh. Jit Singh & Anr. vs Union Of India & Ors.
2011 Latest Caselaw 3521 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Date of decision: 25th July, 2011
+                                   W.P.(C) NO.1058/1997
         SH. JIT SINGH & ANR.                                 ..... Petitioners
                        Through:           Ms. Jyoti Singh, Sr. Adv. with Ms.
                                           Vandana Sharma & Ms. Shikha
                                           Tyagi, Advs.
                                       Versus
         UNION OF INDIA & ORS.                               ..... Respondents
                      Through:             Mr. Baldev Malik, Adv. for R-1.
                                         AND
+                                  W.P.(C) NO.1059/1997
         SH. ATMA SINGH                                       ..... Petitioner
                      Through:             Ms. Jyoti Singh, Sr. Adv. with Ms.
                                           Vandana Sharma & Ms. Shikha
                                           Tyagi, Advs.
                                       Versus
         UNION OF INDIA & ORS.                               ..... Respondents
                      Through:             Mr. Baldev Malik, Adv. for R-1.
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)Nos.1058/1997 & 1059/1997                                        Page 1 of 24
 RAJIV SAHAI ENDLAW, J.

1. The two petitioners namely Sh. Jit Singh and Sh. Manjeet Singh in

W.P.(C) No.1058/1997 are the sons of Sh. Atma Singh who is the

petitioner in W.P.(C) No.1059/1997.

2. Sh. Atma Singh has filed W.P.(C) No. 1059/1997 impugning the

order dated 15th November, 1996 of the Appellate Tribunal for Forfeited

Property dismissing his appeal against the order dated 28 th December, 1994

of the Competent Authority under the Smugglers and Foreign Exchange

Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) forfeiting his

property being a house and agricultural land measuring 40 Kanals 17

Marlas both in village Sheron, Tehsil Taran Taran, District Amritsar.

3. Sh. Jit Singh and Sh. Manjeet Singh have filed W.P.(C)

No.1058/1997 impugning the common order dated 18 th November, 1996 of

the Appellate Tribunal for Forfeited Property dismissing their separate

appeals against the orders dated 22 nd December, 1994 and 28th October,

1994 respectively of the Competent Authority forfeiting their one fourth

undivided share each in agricultural land in village Sheron, Tehsil Taran

Taran, District Amritsar.

4. Notice of both the writ petitions was issued and vide order dated 12 th

March, 1997, the parties were directed to maintain status quo regarding

possession. Counter affidavit has been filed by the respondents in W.P.(C)

No.1059/1997. On 28th February, 2002, Rule was issued and the interim

order confirmed. On 13th December, 2007, the counsel for the petitioners

gave up the challenge to Sub-Section 6(A) of Section 12 of SAFEMA as

originally made in the petitions. On 21st July, 2009, the petitions were

dismissed in default. Applications for restoration were filed. In the said

applications, it has been stated that Sh. Atma Singh expired on 2 nd June,

2009. The application for restoration of W.P.(C) No.1059/1997 filed by

Sh. Atma Singh has been filed by the widow of Sh. Atma Singh. The

applications for restoration were allowed on 17th February, 2011 and the

writ petitions restored to the original position. No formal order of

substitution of legal representatives of Sh. Atma Singh was sought or

made. Technically, the writ petition filed by Sh. Atma Singh has abated.

However, since no objection in this regard has been taken by the

respondents and arguments have been addressed and heard on merits in the

petitions, it is deemed expedient to decide the writ petition preferred by Sh.

Atma Singh on merits.

5. The senior counsel for the petitioners during the course of hearing

had contended that the record of the Competent Authority and the

Appellate Authority had not been requisitioned till now and sought

adjournment on that ground. However, since in the long time of 14 years

since when the petitions have been pending in this Court, the record was

not sought to be requisitioned, it was not deemed appropriate to adjourn

the matter and it was directed that if during the hearing need for the record

was felt, it will be called for. No such need has been felt. Nevertheless, the

counsel for the respondents was directed to place the record before this

Court before the order is signed, to satisfy the judicial conscience of this

Court that no error has crept in owing to the record being not so available.

The record has been so made available and has been perused.

6. An order of detention of Sh. Atma Singh under the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act, 1974

(COFEPOSA) was made on 19th December, 1974. He was detained on the

ground that he had been dealing in smuggling of Opium. The Competent

Authority issued a notice under Section 6(1) of SAFEMA to Sh. Atma

Singh on 7th January, 1977 and after considering the objections of Sh.

Atma Singh, as aforesaid made an order dated 28 th December, 1994 of

forfeiture of house and agricultural land in his name in village Sheron,

Tehsil Taran Taran, District Amritsar. The Appellate Tribunal dismissed

the appeal preferred by Sh. Atma Singh observing / holding as under:

(i) The claim of Sh. Atma Singh was that he had one third share

in ancestral land and also cultivated the agricultural land of

his father-in-law who was living with him before his death

many years ago;

(ii) That Sh. Atma Singh failed to give the information sought

from him by the Competent Authority without any plausible

explanation. Sh. Atma Singh had thus avoided giving any

information thereby restricting the enquiry into his other

properties;

(iii) Though Sh. Atma Singh filed affidavits but without offering

himself for cross examination;

(iv) Sh. Atma Singh further claimed that besides agricultural

income he also had income from professional wrestling as

well as from studs / cattle;

(v) However, the claim of income from agriculture, professional

wrestling and studs / cattle was not based on any verifiable

evidence;

(vi) Though Sh. Atma Singh claimed substantial savings to

acquire properties but no money out of such savings was ever

put in post office or bank accounts;

(vii) Sh. Atma Singh failed to answer the queries regarding extent

of agricultural income or the details of the claimed ancestral

land;

(viii) That the summons sent to the wife and father-in-law of Sh.

Atma Singh had remained uncomplied;

(ix) In the absence of explanation, it was concluded that the

income from agricultural activities was meager and not

sufficient for the entire family or to justify the savings;

(x) No specific year wise income from wrestling or from sale of

studs and cattle was shown;

(xi) Merely, being a wrestler does not prove income therefrom;

(xii) On the contrary, it was on record that the father of Sh. Atma

Singh had borrowed monies from the Punjab Government and

which he would not have borrowed had Sh. Atma Singh been

earning as claimed;

(xiv) No proof was submitted of land on which the house was

constructed being ancestral land; rather the original claim was

of the said land being the self acquired land of Sh. Atma

Singh.

7. The Competent Authority was also of the view that certain other

land in village Sheron, Tehsil Taran Taran, District Amritsar had been

acquired by Sh. Atma Singh in the names of his sons Sh. Jit Singh & Sh.

Manjeet Singh. Being persons covered by Section 2(2)(c) of SAFEMA,

notices under Section 6(1) of the Act were issued to them and after

considering the objections filed by them, the Competent Authority as

aforesaid made orders dated 22 nd December, 1994 and 28 th October, 1994

respectively of forfeiture.

8. The Appellate Tribunal in the common order dated 18 th November,

1996 on separate appeals preferred by Sh. Jit Singh & Sh. Manjeet Singh

observed / held :

(i) That the approximate purchase consideration of the land in the

name of Sh. Jit Singh and Sh. Manjeet Singh was `67,500/-

which was sought to be explained as under:

"(a) Loan from Gurdip Singh S/o Pratap Singh, `10,000/-

Village Sheron, Teh. Taran Taran, Distt. -

Amritsar on 22nd March, 1971.

(b) Loan from Rur Singh S/o Banta Singh, R/o `8,000/-

Vill. Sheron, Teh. Taran Taran, Distt.

Amritsar on 22nd March, 1971.

(c) Loan from Fauja Singh S/o Saran Singh `5,000/-

R/o Rani Villa, Teh. Taran Taran, Distt.

Amritsar on 25th March, 1971.

(d) Sale of buffalo to Ajaib Singh S/o Kartar `7,700/-

Singh R/o Sultan Wind, B. Division, Gali

Batwala, Amritsar.

(e) Sale of buffalos to Harbans Singh S/o `17,500/-

Uzagar Singh on 20th March, 1971.

(f) Amount received from father Sh. Atma `19,300/-

Singh and savings from agriculture."

`67,500/-"

(ii) However, neither Sh. Jit Singh nor Sh. Manjeet Singh had any

agricultural land until purchase aforesaid, to have any savings from

agriculture; similarly in the order in the case of Sh. Atma Singh

agricultural income had not been held sufficient to justify savings;

thus the explanation of the last item aforesaid of `19,300/- was not

satisfactory and the amount of `19,300/- admittedly provided by Sh.

Atma Singh had come from his illegal activities;

(iii) The monies claimed to have been loaned by Sh. Gurdip Singh, Sh.

Rur Singh and Sh. Fauja Singh aforesaid were not claimed to have

been loaned to Sh. Jit Singh or Sh. Manjeet Singh but to Sh. Atma

Singh;

(iv) Sh. Gurdip Singh appearing as a witness before the Competent

Authority had been unable to justify savings to be in a position to

make a loan of `10,000/- to Sh. Atma Singh;

(v) Sh. Rur Singh who was claimed to have loaned `8,000/- was unable

to even establish ownership of any land to be able to to have income

to have savings of `8,000/-;

(vi) Sh. Fauja Singh who was stated to have loaned `5,000/- was retried

from Army and was unable to substantiate that he had cash of

`5,000/- to loan to Sh. Atma Singh;

(vii) It was thus held that the alleged loans were fictitious and in fact was

the ill gotten money of Sh. Atma Singh himself;

(viii) Receipt of `7,700/- from sale of buffalo was disbelieved being

disproportionate to the prevalent price of buffalos;

(ix) Sale of buffalos to Sh. Harbans Singh remained unproved;

9. The senior counsel for the petitioners has at the outset contended

that the proceedings insofar as against Sh. Jit Singh and Sh. Manjeet

Singh are concerned, are entitled to be quashed for the reason that

they were admittedly issued notices under Section 6(1) of the Act. It

is contended that since they were not the detenu, for any action

under SAFEMA against them, they were to be issued notices under

Section 6(2) of the Act and which had admittedly not been given.

10. Section 6 of the SAFEMA is as under:

"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.

(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."

11. The contention of the senior counsel for the petitioner is that the

Scheme of Section 6 provides for a notice under Section 6(1) to the detenu

under COFEPOSA or other Acts mentioned in Section 2(2)(a)(b) and a

notice under Section 6(2) to any other person holding such property on

behalf of the detenu.

12. Without even entering into the merits of the aforesaid contention, it

has at the outset been enquired from the senior counsel for the petitioners

as to how the petitioners can claim to have been prejudiced by receipt of a

notice under Section 6(1) instead of under Section 6(2) as claimed by

them. No answer has been forthcoming. The senior counsel for the

petitioners could only contend that the provisions of a statute as SAFEMA

ought to be strictly construed. However, it appears that in the absence of

any prejudice having been shown to have been suffered, a mistake in the

provision of law under which notice has been issued could be of no avail,

the purport of the notice being to enable the person against whom action of

forfeiture of property is contemplated to show cause against the same. It is

not in dispute that appropriate opportunity to show cause has been given.

13. Even otherwise, I do not find any merit in the contention aforesaid.

Section 6(1) refers to a "person to whom SAFEMA applies". Section 2(1)

of the Act makes the provisions of the Act applicable to the "persons

specified in Sub-Section 2" and Clause (c) of Sub-Section (2) includes

therein the relatives of a person who have been convicted inter alia under

COFEPOSA, and it is not in dispute that Sh. Jit Singh and Sh. Manjeet

Singh were relatives of the detenu / convicted person Sh. Atma Singh,

within the meaning of the Act. Section 6(2) does not apply to persons to

whom SAFEMA applies and contemplates notice to persons other than

those to whom SAFEMA applies and who may be holding the property on

behalf of a person to whom SAFEMA applies. I find that though this

Court in Smt. Kamla Bai Vs. UOI 109 (2004) DLT 237 appears to suggest

otherwise but not really so; moreover in that case no notice whatsoever had

been given to the petitioner who was the wife of the detenu.

14. The senior counsel for the petitioner next contends that the

Competent Authority as well as the Appellate Authority have in both

matters proceeded on the premise that they have to decide on the basis of

preponderance of probabilities. It is contended that the burden to prove

that the property has been acquired from known justified sources of

income shifts to the noticee only after the Competent Authority has

discharged the initial burden of establishing that the property has been

acquired from ill gotten means. It is contended that the Competent

Authority had failed to discharge such initial burden in the present case.

15. However, I find that Section 8 of SAFEMA, in any proceedings

under SAFEMA places the burden of proving that any property, specified

in the notice served under Section 6 is not illegally acquired property, on

the person affected. In the face of the said provision, it has been enquired

from the senior counsel for the petitioners as to how it is contended that the

initial burden is on the Competent Authority.

16. The senior counsel for the petitioners has in this regard referred to

Shanti Devi Vs. Union of India 73 (1998) DLT 477 (DB), P.P. Abdulla

Vs. The Competent Authority 2007 (1) Crimes 69(SC) and Mohinder

Kaur Vs. Union of India 180 (2011) DLT 149.

17. However the cited judgments fail to support the contention of the

senior counsel for the petitioners. All that the Division Bench in Shanti

Devi (supra) held was that the applicability of SAFEMA is not attracted

unless some link or nexus between the property held by the relative and

illegal activity of the convict / detenu is shown to exist. The link in the

present case was sufficiently established in the notices issued. The senior

counsel admits that Sh. Jit Singh and Sh. Manjeet Singh were minor at the

time of acquisition of the land and had no source of income of their own.

The explanation of Sh. Jit Singh and Sh. Manjeet Singh themselves was as

aforesaid of the sale consideration. Their response / defence was of their

father Sh. Atma Singh, being the detenu / convict, having arranged the

monies either himself or through loans as aforesaid. That was in my

opinion sufficient link / nexus between the properties and the illegal

activity particularly when Sh. Atma Singh was himself unable to justify

any legal source of income of his own. The principle laid down in P.P.

Abdulla (supra) is the same. In Mohinder Kaur (supra), the notice under

Section 6(1) was found to be lacking since the period during which

petitioner‟s husband had indulged in illegal activities was not correlated to

the acquisition of property. Such is not the case here. On the contrary, the

Supreme Court in Smt. Kesar Devi Vs. UOI AIR 2003 SC 4195 and the

Division Bench of this Court in Prem Mehra (deceased) by Lrs. Vs. V.K.

Baranwal, Competent Authority 133 (2006) DLT 653 held that the burden

of establishing that the properties mentioned in notice under Section 6

which are held by a relative of the convict / detenu, are not the illegally

acquired properties of the convict / detenu, lies upon such relative in fact

associate; he must establish that the said property has not been acquired

with the monies or assets provided by the detenu / convict or that they

infact did not or do not belong to such detenu / convict.

18. The senior counsel for the petitioners also argued that opportunity to

cross examine Sh. Gurdip Singh, Sh. Rur Singh and Sh. Fauja Singh who

were claimed to have given loans for purchase of land in the name of Sh.

Manjeet Singh and Sh. Jit Singh had not been availed of and thus their

statement of having given loan ought to have been believed and has been

wrongly disbelieved by the Competent Authority and the Appellate

Authority. However, the petitioners have not placed any document

whatsoever in this regard before the Court. The senior counsel for the

petitioners states that she is seeking requisition of records for the said

purpose only. The petitioners have in fact failed to place before this Court

even the affidavit if any filed by the said persons before the Competent

Authority.

19. I have perused the file of the Competent Authority delivered by the

counsel for the respondents on the day following the hearing. The same

contains the statements of Sh. Gurdip Singh, Sh. Fauja Singh, Sh. Atma

Singh, Sh. Harbans Singh, Sh. Ajaib Singh and Sh. Rur Singh. The said

statements are not recorded in the form of examination and cross

examination. The order sheet of the Competent Authority of that date also

records that the statements of the said persons had been recorded. It is

nowhere recorded that the cross examination had been refused. On the

contrary, a perusal of the statements recorded shows that the answers

therein are also as could be given only in cross examination. For instance

Sh. Gurdip Singh has replied that neither he nor any of his family members

had any bank account; that he had at about the same time as of giving the

loan, also married his daughter and spent monies therein; similarly the

inferences aforesaid drawn by the Appellate Authority from the statement

of Sh. Fauja Singh are also borne out from his replies which could only be

in reply to questions as in cross examination. It thus appears that the

Competent Authority posed questions to the said persons on the basis of

the defence / response of Sh. Jitt Singh / Sh. Manjeet Singh, for deciding

the veracity thereof. It thus cannot be said that their statements ought to

have been treated as gospel truth for the reason of opportunity to cross

examine having not been availed of.

20. The senior counsel for the petitioners with reference to the petition

of Sh. Atma Singh has only contended that while the property in his name

which has been forfeited was purchased in 1963, the order of detention was

in the year 1977. It is contended that thus the acquisition of the property

could not be from the income of the offences for which he has been

convicted.

21. I am unable to agree. The order of the Competent Authority in the

case of Sh. Atma Singh shows records of recovery of smuggled goods

from Sh. Atma Singh in the year 1974 also. Moreover, it was not the case

of Sh. Atma Singh that in 1963 he had some other vocation or source of

income. There is thus no merit in the said contention.

22. The senior counsel for the petitioners has also contended that the

authorities have erred in making assessments on the basis of value of gold

or in disbelieving Sh. Atma Singh‟s income from wrestling. It is

contended that villagers cannot be expected to maintain records as were

demanded.

23. Per contra, the counsel for the respondents has contended that the

Competent Authority as well as the Appellate Authority have given

detailed reasoning for the conclusions arrived at; they have held the

petitioners to have failed to prove any other source of income for

acquisition of property except through illegal means. It is further

contended that the legislature having not provided for a second appeal

against the order of the Appellate Tribunal, this Court in the guise of the

exercise of power of judicial review cannot re-appreciate evidence and the

challenge before this Court can only be on the grounds of violation of any

procedure required to be followed and which is not the case. He thus

contends that there is no merit in the petitions. I find substantial merit in

the said contentions.

24. The senior counsel for the petitioners has in rejoinder cited para 25

of the judgment dated 14th September, 2007 of this Court in W.P.(C)

No.4581/1996 titled Sh. Gian Chand Garg Vs. Union of India where in

the facts of that case, on preponderance of probabilities it was held that the

consideration for purchase of property was disproportionate to the known

source of income. However, that is not the position here; as aforesaid Sh.

Atma Singh was unable to establish any known source of income from

which he could have made any savings as claimed.

25. The senior counsel for the petitioners has also argued that the order

of forfeiture of properties of the brother of Sh. Atma Singh was also made

and which was set aside in appeal. A copy of the order dated 20 th

November, 1996 of the Appellate Tribunal has been handed over.

However, the senior counsel for the petitioners has been unable to show as

to how the facts as applicable to the brother of Sh. Atma Singh are relevant

to the decision of the present petitions or applicable to Sh. Atma Singh and

his sons.

26. Before parting with the case reference may be made to Mahesh

Kantilal Zaveri Vs. Union of India 2010 VII AD (Delhi) 804 where this

Court relying on Attorney General for India Vs. Amratlal Prajivandas

(1994) 5 SCC 54 held that until and unless the detention order under

COFEPOSA is successfully challenged, the basis of subsequent forfeiture

under SAFEMA cannot be questioned. There is no averment herein of Sh.

Atma Singh having successfully challenged the order against him under

COFEPOSA and thus the forfeiture effected of the properties of Sh. Atma

Singh, Sh. Jit Singh and Sh. Manjeet Singh cannot also be questioned. The

petitions are liable to fail on this ground also.

27. No other argument has been urged by the senior counsel for the

petitioners.

28. There is thus no merit in the petitions. The same are dismissed. The

petitioners, under interim orders in these petitions have retained possession

of the forfeited properties. They are now directed to, on or before 30th

September, 2011, in compliance of the orders of forfeiture impugned in

these petitions deliver possession of the properties to the respondents and

do all other acts, deeds and things which they may be so required to do.

The Competent Authority SAFEMA is also directed to forthwith take

possession of the property.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JULY 25, 2011 „gsr‟ (corrected and released on 24th August, 2011)