MITHU BAWA PADIYAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Both these petitions are filed by the petitioners who are incidently husband and wife and have challenged the legality and validity of the notice to show-cause issued under sec. 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as the "SAFEMA Act") and the subsequent orders of confiscation passed by the competent authority in exercise of powers vested under sec. 7 of the SAFEMA Act. Both the petitioners have challenged notice containing same/similar facts and mostly on similar grounds. So, both these petitions are heard together and they are being disposed of by this common judgment.

(2.) It would be necessary to state some facts reflected from the petitions. The petitioner of SCA No. 11079 of 2000 was detained by the competent authority i.e. detaining authority, on completion of investigation by the customs authority, vide detention order dated 21.7.1982 passed by the Govt. of Gujarat under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act"). He was taken under detention immediately but the order of detention was ultimately revoked by the State Government on 18.10.1982. However, the petitioner was again detained under a fresh order of detention under COFEPOSA passed on that very day i.e. 18.10.1982. Ultimately, the petitioner was released from the said detention on completion of period of detention on 23.7.1983. It seems that the authority empowered, issued notice to initiate further proceedings for forfeiture of the property under SAFEMA Act stating that the petitioner Mithu Bawa Padiyar is holding property purchased and/or developed by tented money earned out of smuggling activities. So, the competent authority issued a notice under the provisions of sec. 6(1) of SAFEMA Act firstly in the year 1983. Of course, the copy of the notice issued by the authority in the year 1983 is not available on record, but in view of the averments made in the affidavit-in-reply filed by the respondent-department. This set of fact is undisputed. No steps for forfeiting property mentioned in the 1983 notice were initiated and that notice was withdrawn. However, on 26.6.1986 and 7.8.1986 both these petitioners were again called upon by the competent authority by issuing notice under sec. 6(1) of the SAFEMA Act. In response to these notices, both the petitioners had supplied details of their income, assets, etc. and had tried to explain that how the property shown in the notice to show cause were acquired by them. It is averred by the petitioner-Mithu Bawa Padiyar that he is the resident of village Nudhatad, Tal: Abdasa, Dist. Kutchh and basically he is an agriculturist and was holding agricultural lands in the sim of village Nudhatad. He was also doing the work of animal husbandry and also keeping cattles like cow, buffalo, sheeps and goats etc. Both the petitioners have produced the notice under sec. 6(1) of SAFEMA Act served to them in the year 1986 vide Annexure-A. It is averred by the petitioner that though there was enough legal and probable resistance by them, the properties mentioned in the schedule to the show cause notice were treated as illegally acquired properties and the competent authority ordered forfeiture of all the properties mentioned in the schedule on account of the order of forfeiture dated 30.6.1999 and 26.7.1999 respectively. The properties were forfeited free from all encumbrances in view of the scheme of sec. 7 of the SAFEMA Act. The order passed by the competent authority under sec. 7 of SAFEMA Act are produced by both the petitioners vide Annexure-D in their respective petitions. According to the petitioners, the order of forfeiture dated 30.6.1999 passed against the petitioner-Mithu Bawa Padiyar was challenged by his son claiming to be a coparcener/joint owner of the ancestral properties by filing an appeal before the Appellate Tribunal (Forfeitured Properties), New Delhi. During the course of oral submissions, ld. counsel appearing for the petitioner Mr. BB Naik has submitted that this appeal is pending before the Appellate Tribunal. The grievance of the petitioners before this Court is that though the earlier proceedings so far as these petitioners are concerned, were over on the day on which properties mentioned in the scheduled were confiscated, the competent authority has issued another notice to show cause on 8.8.2000 on the same grounds for confiscating the properties held by his wife-Bachibai Mithu Bawa Padiyar. According to the petitioners, this Bachibai Mithu Bawa Padiyar and Jayshreeben Mithu is the same person, however, the competent authority has described Jayshreeben and Bachibai as two different individuals and both are described as wives of petitioner-Mithu Bawa Padiyar. These petitions challenge the legality and validity of the notice dated 8.8.2000 and it is specifically contended by the petitioners that this second/fresh notice to show cause issued under sec. 6(1) of the SAFEMA Act dated 8.8.2000 are illegal, unlawful, invalid, unjust, improper on number of grounds.

(3.) After service of rule, the respondent no. 1-competent authority under the SAFEMA Act has filed its affidavit in reply and has resisted the petition on factual as well as legal grounds. Having considered the contents of the petitions and affidavit-in-reply, in reference to the oral arguments advanced by the ld. counsel appearing for the petitioner Mr. BB Naik, the court feels that the submissions advanced by Mr. BB Naik requires detailed consideration in view of the say of respondent no. 1 that the petitions at the show cause stage are not maintainable and even otherwise on merits the petitioners have no case.