Madras High Court
Hasanudeep vs The Competent Authority on 19 August, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.19067 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2024
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
W.P.No.19067 of 2024
&
W.M.P.No.20917 of 2024
P.S.M. Syed Abuthahira Beevi (Deceased)
through her legal heirs and representatives
1. Hasanudeep
2. Zainudeen
3. Sarfraz Nawaz
4. Aysath Rursthana ... Petitioners
Vs.
1. The Competent Authority
(Smugglers and Foreign Exchange
Manipulators (Forfeiture of property) Act,
Government of India, Shastri Bhavan,
Annex Building 26, Haddows Road,
Chennai – 600 006.
2. The Appellate Tribunal for Forfeited Property,
Through its registrar, 4th floor,
Lok Nayak Bhavan, Khan Market,
New Delhi – 110 003 ... Respondents
PRAYER:- This writ petition has been filed under Article 226 of the
1/13
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W.P.No.19067 of 2024
Constitution of India to call for the records of the order of the 2nd respondent
Tribunal dated 25.05.2024 in FPA/29/MDS/2001 whereby the said Tribunal
has dismissed the appeal of the petitioners quash the same and consequently
direct the said Tribunal to dispose of the appeal on its merits after giving due
opportunity to the petitioners herein to canvas the appeal against the orders
of forfeiture passed in terms of Section 7(1) of the SAFEMA, 1976 of the 1st
respondent in F.No.OCA/MDS/2655/87 dated 29.01.2001.
For Petitioners : Mr. B.Satish Sundar
For Respondents : Mr.N.Ramesh,
Senior Panel Counsel
ORDER
[Order of the Court is made by S.M.SUBRAMANIAM, J.]
One Mr.Shamshuddin was detained under COFEPOSA. In 1987,
consequential proceedings were initiated under the Provisions of the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act,
1976 to forfeit the properties held by the detenue and his wife, who is also
falling under the definition of relatives under Section 2 of Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(hereinafter referred as SAFEMA). Notice was issued under Section 6(1)
of SAFEMA and opportunities were provided to the affected persons. On
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account of stay granted by the Hon'ble Supreme Court, all the proceedings
initiated under the Provisions of SAFEMA were kept in abeyance. The
Hon'ble Supreme Court vacated the interim stay in the year 1996 and
thereafter, the proceedings were restored by the competent authorities and
personal hearings were afforded to the affected persons.
2.The learned counsel for the respondents would submit that even
during the pendency of the case before the Hon'ble Supreme Court, Section
6(1) notices were issued to the affected persons and proceedings were alive.
However, further proceedings were kept in abeyance on account of the
interim stay granted by the Hon'ble Supreme Court. Further, he would
submit that the order of forfeiture under Section 7 of SAFEMA was issued
during the relevant point of time and the said order was taken by way of an
appeal. Several proceedings were issued by the competent authorities, which
may not be required for this Court to consider those proceedings in the
present writ petition.
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3.The present writ petition has been instituted challenging the order
passed by the 2nd respondent/Appellate Tribunal under SAFEMA dated
25.05.2024. The affected person Mrs.P.S.M.Syed Abuthahira Beevi, filed
WP.No.17698 of 2014 challenging the exparte order passed by the Appellate
Tribunal under SAFEMA rejecting the restoration petition filed by the
affected person. The writ petition was adjudicated by the learned Single
Judge of this Court and final order was passed on 02.12.2022 setting aside
the exparte order passed by the Appellate Tribunal and the writ petition was
allowed and the appeals filed by the affected persons were restored on file
and the Tribunal was directed to dispose of the appeal as expeditiously as
possible considering the nature of the delay.
4.The grievance of the writ petitioner is that once again, the Tribunal
dismissed the appeal on the ground that the legal heirs of the affected person
have not been impleaded in the appeal proceedings.
5.Mr.B.Sathish Sunder, learned counsel for the petitioners would
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submit that the Tribunal ought to have provided an opportunity to the legal
heirs of the affected persons to adjudicate the issue on merits. Contrarily,
the appeal as again rejected on the ground that steps were not taken to
implead the legal heirs soon after the disposal of the writ petition by the
High Court of Madras.
6.Mr.Ramesh, learned Senior Panel Counsel appearing for the
respondents would oppose by stating that the petitioners are adopting delay
tactics in this matter. The issues are pending from the year 1987 onwards.
Section 6(1) notice was issued by following due procedures. Forfeiture
order under Section 7 of SAFEMA was issued when the appeal was filed.
The affected persons remained exparte and the Tribunal passed an exparte
award. The said award was challenged by way of writ petition in the year
2014 and the writ petition was allowed and the appeal was restored by the
High Court providing an opportunity to the affected persons to adjudicate
on merits. Despite the fact, an opportunity was provided, steps were not
taken by the legal heirs of the affected persons to implead themselves in the
appeal proceedings. Pertinently, the legal heirs were impleaded in the writ
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proceedings and therefore, they have knowledge about the proceedings.
That being so, the Tribunal made a clear observation regarding the conduct
of the writ petitioners and rejected the appeal. Thus, there is no infirmity
and the present writ petition is to be rejected.
7.It is unnecessary for this Court to go into the other details since the
proceedings initiated under Section 6(1) of the SAFEMA and the order
passed under Section 7 became final and an appeal was filed before the
Appellate Tribunal. During the first round, the exparte order passed by the
Appellate Tribunal was set aside by this Court and the Appeal was restored
on file.
8.Regarding the conduct of the writ petitioners, it is relevant to
consider the findings made by the Appellate Tribunal. The Appellate
Tribunal made findings as follows :
“ We however do not find an application to bring
legal heirs of the Appellant on record or application to
amend the cause title though on the remand of the case, the
application should have been filed immediately. Till date,
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no application for substitution of deceased Appellant or for
amendment of cause title has been filed thus the present
Appeal remains in the hands of a dead person. The
application in the Writ petition for substitution cannot be
taken for this Appeal as each proceeding has to be taken as
per its record.
....... .
We find that this Appeal is in hands of the dead person
and the Vakalatnama cannot be entertained in reference to
the legal heirs not brought on record and even the amended
cause title has not been filed. It is now settled law of land that
even if provision of C.P.C. are not applicable for substitution
of the deceased, it would still go in the terms of Order 22 Rule
3 C.P.C. The reasonable period for substitution would be of
90 days, as given under Article 120 of Limitation Act. The
relevant para of the judgment of Apex Court in the case of
Shri Puran Singh V/s.State of Punjab reported in (1996) 2
SCC 205 is quoted hereunder:-
“As such even if it is held that Order 22 of the Code is
not applicable to writ proceedings or writ appeals, it does not
mean that the petitioner or the appellant in such writ petition
or appeal can ignore the death of the respondent if the right
to pursue remedy even after death of the respondent survives.
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After the death of the respondent it is incumbent on the part
of the petitioner or the appellant to substitute the heirs of
such respondent within a reasonable time. For purpose of
holding as to what shall be a reasonable time, the High Court
may take note of the period prescribed of holding Article 120
of the Limitation Act for substituting the heirs of the deceased
defendant or the respondent. However, there is no question
of automatic abatement of the writ proceedings. Even if an
application is filed beyond 90 days of the death of such
respondent, the Court can take into consideration the facts
and circumstances of a particular case for purpose of
condoning the delay in filing the application for substitution
of the legal representatives. This power has to be exercised
on well known and settled principles in respect of exercise of
discretionary power by the High Court. If the High Court is
satisfied that delay, if any, in substituting the heirs of the
deceased respondent was not intentional, and sufficient cause
has been shown for not taking the steps earlier, the High
Court can substitute the legal representatives and proceed
with the hearing of the writ petition or the writ appeal, as the
case may be. At the same time the High Court has to be
conscious that after lapse of time a valuable right accrues to
the legal representative of the deceased respondent and he
should not be compelled to contest a claim which due to the
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inaction of the petitioner or the appellant has become final.”
This Tribunal has passed a detailed order dealing with
the similar issue though in reference to the provision of
Prevention of Money Laundering Act, 2002 and not under
subject matter but ratio propounded therein could apply to
this case. A reference of the order in Appeals No.FPA-
PMLA-229/HYD/2011, FPA-PMLA-221/HYD/2011, FPA-
PMLA-226 & 227/HYD/2011, FPA-PMLA-44/HYD/2010 in
the case of K.Venkatapathu Raju & Ors. Vs. the Deputy
Director, Directorate of Enforcement, Hyderabad decided on
13.05.2024 is given.
In view of the recent order of this Tribunal in reference
of the judgment of the Supreme Court, we are unable to keep
the matter pending in the hands of the dead person. It is a
situation where even the death of the deceased was in the
knowledge of legal heirs while pursuing the writ petition
before the High Court but did not file an application for
substitution of the deceased or amendment in the cause title
of this Appeal thus we are left with the option but to abate the
Appeal and accordingly, it is dismissed.”
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9.Pertinently, the writ petitioners have not filed any application
seeking impleadment themselves as legal heirs for more than two years.
Taking exception to the conduct of the writ petitioners, the Tribunal rejected
the appeal. It is brought to the notice of this Court that the respondents have
already taken possession of the forfeited properties.
10.The conduct of the litigants to increase the longevity of the
litigations by one way or other, at no circumstances be appreciated by the
Courts. Intentional prolongation of litigation at the instance of the parties
cannot be considered as a ground for the purpose of providing repeated
opportunity. In the present case, the petitioners could not able to establish
ignorance in respect of the death of the affected persons or the necessity to
implead the legal heirs in the appeal proceedings. Pertinently, the legal heirs
of the affected persons have been already impleaded in the writ proceedings
and that being so, it would be the natural course that such legal heirs ought
to have been impleaded as parties in the appeal proceedings. These legal
heirs were already represented through lawyers. Therefore, they cannot
plead ignorance of necessity to file an appropriate application before the
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Appellate Tribunal for impleading them in the proceedings. Thus, it is
apparently clear that the legal heirs of the affected persons made an attempt
to escape from the clutches of the proceedings by prolonging the litigations.
The initiation of proceedings under SAFEMA is going on for the past about
37 years. That being the factum, we are not inclined to entertain the writ
petition.
11.Accordingly, writ petition stands dismissed. No costs.
[S.M.S., J.] [R.S.V., J.]
19.08.2024
Index : Yes/No
Speaking Order : Yes/No
Neutral Citation : Yes/No
mrp
To
1. The Competent Authority
(Smugglers and Foreign Exchange
Manipulators (forfeiture of property) Act,
Government of India, Shastri Bhavan,
Annex Building, 26, Haddows road,
Chennai – 600 006.
https://www.mhc.tn.gov.in/judis
2. The Appellate Tribunal for Forfeited Property,
Through its registrar, 4th floor,
Lok Nayak Bhavan, Khan Market,
New Delhi – 110 003.
3. The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.M.SUBRAMANIAM, J.
and
R.SAKTHIVEL, J.
mrp
&
19.08.2024
https://www.mhc.tn.gov.in/judis
