Comptent Authority Under Safema / ... vs Late Shri Sukar Narain Bakhia Rep. ...
2021 Latest Caselaw 15402 Guj

  C/SCA/23094/2006                              CAV ORDER DATED: 01/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 23094 of 2006
                                With
             R/SPECIAL CIVIL APPLICATION NO. 3947 of 2007

                                    With

            R/SPECIAL CIVIL APPLICATION NO. 18362 of 2014
                                With
            R/SPECIAL CIVIL APPLICATION NO. 18436 of 2014

==========================================================

COMPETENT AUTHORITY UNDER SAFEMA / NDPSA, MUMBAI AND OTHERS

Versus

LATE SHRI SUKAR NARAIN BAKHIA REP. BY DHIRUBHAI JIVANBHAI AND OTHERS ========================================================== Appearance:

Special Civil Applications No.23094 of 2006 and 3947 of 2007 :

MR HARSHEEL D SHUKLA, Central Government Standing Counsel for the Petitioner - Central Government Authorities

MR SHALIN MEHTA, SENIOR ADVOCATE with MR BHAGIRATH PATEL, ADVOCATE & MR SHIRISH SANJANWALA, SENIOR ADVOCATE with MR DILIP KANOJIYA, ADVOCATE for the respective contesting Respondents

Special Civil Applications No.18362 of 2014 :

MR SHIRISH SANJANWALA, SENIOR ADVOCATE with MR DILIP KANOJIYA, ADVOCATE for the Petitioners MR HARSHEEL D SHUKLA, Central Government Standing Counsel for the contesting Respondent - Authorities

MR HARDIK SONI, AGP for the State of Gujarat

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

Special Civil Applications No.18436 of 2014 :

MR SHALIN MEHTA, SENIOR ADVOCATE with MR BHAGIRATH PATEL, ADVOCATE for the Petitioners

MR HARSHEEL D SHUKLA, Central Government Standing Counsel for the contesting Respondent - Authorities

MR HARDIK SONI, AGP for the State of Gujarat ==========================================================

CORAM:HONOURABLE MR. JUSTICE PARESH UPADHYAY

Date : 01/10/2021

CAV ORDER

1. Challenge in Special Civil Application No.23094 of 2006 is made by the Central Government Authorities to the order passed by the Appellate Tribunal for Forfeited Property, New Delhi, dated 14.08.2006. By the said order, the Appellate Tribunal had allowed the appeals arising from five different orders passed by the Competent Authority. The details thereof are as under.

(i) FPA-26/BOM/2001, dated 29.5.2001,

(ii) FPA-36/BOM/2001, dated 29.6.2001,

(iii) FPA-77/BOM/2001, dated 21.1.2001,

(iv) FPA-78/BOM/2001, dated 21.1.2001 and

(v) FPA-80/BOM/2001, dated 21.1.2001.

2. Challenge in Special Civil Application No.3947 of 2007 is made by the Central Government Authorities to the order passed by the Appellate Tribunal for Forfeited Property, New Delhi, dated 09.11.2006 in FPA-6/BOM/2002. By the said order, the Tribunal had allowed appeal arising from the forfeiture order passed by the Competent Authority, Mumbai dated 07.01.2002.

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

3. Special Civil Applications No.18362 & 18436 of 2014 are, in substance cross petitions to the above noted two petitions. These two petitions are filed by the affected persons, challenging the consequential actions by the Central Government Authorities against them, on the basis of detention order against one Sukar Narain Bakhia. The said detention order was validly relied - that is the stand of the Government. As against that, the said detention order was not in existence at the relevant time - that is the stand of the petitioners of Special Civil Applications No.18362 & 18436 of 2014.

4.1 The prayer clause of Special Civil Application No.18362 of 2014 reads as under.

"15. (A) Admit this Special Civil Application.

(B) Your Lordships may be pleased to issue a writ of certiorari and / or any other appropriate writ, order or direction quashing and setting aside the impugned order of detention dated 3.11.1980 passed against the detenu and Your Lordships may be further pleased to declare that all subsequent proceedings under SAFEMA based on such order of detention are illegal, void and without jurisdiction.

(C) Your Lordships may be pleased to issue a writ of certiorari and / or any other appropriate writ, order or direction quashing and setting aside the impugned order under Section 7 of SAFEMA dated 6.6.2001 passed by the Competent Authority as far as Properties at Item Nos. 4 & 5 are concerned.

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

(D)Your Lordships may be pleased to declare that since the order of detention passed against the detenue dated 3.11.1980 has been revoked and / or was not operative on the date when the SAFEMA proceedings were started and concluded, the said order of detention could not have been made the basis of the proceedings under SAFEMA.

(E) Your Lordships may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction directing the respondents to act in accordance with law and not to start and / or conduct any proceedings on the basis of such revoked order of detention dated 3.11.1980."

4.2 The prayer clause of Special Civil Application No.18436 of 2014 reads as under.

" 15. (A) Admit this Special Civil Application.

(B) Your Lordships may be pleased to issue a writ of certiorari and / or any other appropriate writ, order or direction quashing and setting aside the impugned order of detention dated 3.11.1980 passed against the detenue and Your Lordships may be further pleased to declare that all subsequent proceedings under SAFEMA based on such order of detention are illegal, void and without jurisdiction.

(C) Your Lordships may be pleased to issue a writ of certiorari and / or any other appropriate writ, order or direction quashing and setting aside the impugned order under Sections 7 & 9 of SAFEMA passed by the Competent

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

Authority.

(D) Your Lordships may be pleased to declare that since the order of detention passed against the detenue dated 3.11.1980 has been revoked and / or was not operative on the date when the SAFEMA proceedings were started and concluded, the said order of detention could not have been made the basis of the proceedings under SAFEMA.

(E) Your Lordships may be pleased to issue a writ of mandamus and / or any other appropriate writ, order or direction directing the respondents to act in accordance with law and not to start and / or conduct any proceedings on the basis of such revoked order of detention dated 3.11.1980."

5. Heard Mr.Harsheel Shukla, learned Central Government Standing Counsel for the Central Government Authority, Mr. Shalin Mehta, learned senior advocate with Mr. Bhagirath Patel, learned advocate for the petitioner of Special Civil Application No.18436 of 2014 and Mr. Shirish Sanjanwala, learned senior advocate with Mr. Dilip Kanojiya, learned advocate for the petitioner of Special Civil Application No.18362 of 2014.

6. It is noted that all the learned advocates have taken this Court extensively through the paper book of this group of petitions, which runs into hundreds of pages, including written submissions from both the sides. The same is not referred to in detail, in view of the reasons recorded hereinafter.

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

7. The entire issue involved in this group of petitions revolves around the detention order dated 03.11.1980, qua one Sukar Narain Bakhia. How that order should be viewed and what can be the consequences thereof, is the point at issue.

8. Having heard learned advocates for the respective parties and having considered the material on record, this Court finds as under :

8.1 The detention order against one Shri Sukar Narain Bakhia alias Sukar Narain Tandel was passed on 03.11.1980 by the Authorities under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'COFEPOSA'). The said person viz., Shri Sukar Narain Bakhia alias Sukar Narain Tandel has died long back.

8.2 On the basis of the above detention order, the Authorities have passed various forfeiture orders exercising powers under the provisions of the Smugglers & Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short, 'SAFEMA').

8.3 The said forfeiture orders were challenged by filing various appeals before the Tribunal by the affected persons.

8.4 The issue before the Tribunal was, whether the forfeiture of the properties was legal, since it was based on a detention order, which was perceived to be inoperative by the affected parties.

8.5 For the above issue, there was an answer in the form of a

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

decision of this Court (Coram : Hon'ble Mr.Justice C.K.Buch) - order dated 30.12.2004 recorded on Special Civil Application No.11007 of 2000. It was binding to the Tribunal.

8.6 Following the above decision, the Tribunal allowed the appeals in favour of the affected persons.

8.7 Those orders of the Tribunal are challenged before this Court in this group of petitions by the Central Government Authorities, the details of which are noted in para: 1 & 2 above.

8.8 During pendency of these petitions, the above referred decision of learned Single Judge of this Court dated 30.12.2004 is set aside by the Division Bench of this Court (Coram : Hon'ble Mr.Justice K.S.Jhaveri and Hon'ble Mr.Justice A.G.Uraizee) vide judgment dated 19.09.2014 recorded on Letters Patent Appeal No.1176 of 2007 in Special Civil Application No.11007 of 2000.

8.9 In view of above, the orders of the Tribunal may be required to be reversed, however the said decision of the Division Bench of this Court dated 19.09.2014 is the subject matter of Civil Appeal No.2559 of 2016, which is pending before the Supreme Court. The judgment of the Division Bench of this Court is stayed, in the meantime.

8.10 This Court is faced with a situation where, as Single Judge, the order of the Division Bench (dated 19.09.2014) has the binding force. But at present, as an interim arrangement, during pendency of the proceedings before the Supreme Court, the said decision is stayed. Therefore, that decision of the

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

Division Bench of this Court, at least for the time being, can not be said to have any force, much-less any binding force. At the same time, interim order of the Supreme Court can not be treated as the law on the point at issue. It is in this situation, this Court has to take appropriate call.

9.1 This Court (sitting as a Single Judge) can be guided by the decision of the Co-ordinate Bench of this Court dated 30.12.2004. But that is set aside by the Division Bench vide order dated 19.09.2014.

9.2 This Court (sitting as a Single Judge) is bound by the decision of the Division Bench dated 19.09.2014, which is in the form of the final judgment, however, the said decision of the Division Bench is stayed by the Supreme Court. The said stay order is an interim order.

9.3 Keeping the matters pending could have been an easy option, but the matters have already remained pending with this Court for more than fifteen years and on the whole, the issue is pending for decades. When the exercise of powers by the Central Government Authorities is under the SAFEMA read with the COFEPOSA, it would be relevant to reassess, what is the present status of the properties in question, keeping the object of the Acts in view.

9.4 Any decision by this Court, in the peculiar facts noted above, can be seen to be erroneous. Had it been the question of liberty of citizen, the balance would tilt in favour of the citizen, however since it is the case of forfeiture of properties by the Government, that too in exercise of powers under the

C/SCA/23094/2006 CAV ORDER DATED: 01/10/2021

SAFEMA read with the COFEPOSA, it would be relevant to know for the Authorities, who acquired it, in whose names, with whose money and actually who is in possession. Let there be a re-look by the Authorities. Let me err in favour of the Authorities. It is with this scale, this order is recorded.

10. For the reasons recorded above, the following order is passed.

10.1 Special Civil Application No.23094 of 2006 and 3947 of 2007 are allowed. The impugned orders passed by the Tribunal (the details of which are noted in para: 1 & 2 above) are set aside.

10.2 Special Civil Application No.18362 of 2014 & Special Civil Application No.18436 of 2014 are dismissed.

10.3 The Authorities, which had passed the orders and which were subject matter before the Tribunal, shall re-examine the issue, keeping in view the observations made in this order.

10.4 All these petitions are disposed of in above terms.

(PARESH UPADHYAY, J) MOBHATI/PS/07