DHANIBEN MAKANBHAI TANDEL Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has filed this petition in the year 1984, under Art. 226 of the Constitution, challenging the order dated 22-3-1978 vide Annexure "B" passed by the Competent Authority, Bombay, under the provisions contained in Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "SAFEMA"). This Court issued notice on 29-3-1984. However, no reply was filed and even after issuance of Rule on 3-4-1984, returnable on 18-4-1984, till the matter was called out for hearing, no return, that is to say affidavit-in-reply, is filed by the respondent denying the averments made in the petition. Therefore, this Court taking those averments to be true shall proceed with the matter in the wake of affidavit filed on behalf of the the respondent No. 2 stating that the petition is filed before the Apex Court being Criminal Writ Petition No. 224 of 1989 under Art. 32 of the Constitution of India for declaring the proceedings under SAFEMA as illegal and the office of the respondent No. 2 has received/served with the petition of the petitioner herein filed in the Hon'ble Supreme Court of India. The copy of the petition is annexed alongwith the affidavit-in-reply.

(2.) Learned Advocate for opponent raised a preliminary contention stating that the petition must be rejected as the petition is not on oath. We called upon Mr. Sanjanwala to point out the affidavit. Mr. Sanjanwala stated that the affidavit is placed on the record of the case and ultimately the same was traced out from the papers alongwith Farad (other papers of the matter). The same was sworn before the Notary Public for Bulsar and Daman, State of Gujarat, and therefore, it is clear that the petition is on oath. Mr. Patel stated that he has seen the record and could not trace out the affidavit and he was under the impression that the affidavit is for service as the same was alongwith the process. Before raising the contention that petition is not on oath, no care is taken and without responsibility statement is made. It is to say that no importance is required to be given to such argument as the affidavit is there.

(3.) In the petition filed before this Court, the petitioner has indicated that brother of petitioner's husband was detained under the provisions contained in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973 (hereinafter referred to as "COFEPOSA Act"). In view of the detention order, the petitioner was served with a notice under the provisions contained in SAFEMA. It is stated on oath in the petition that the detenu was originally detained on 19/12/1974. The said order was challenged before the Delhi High Court and by judgment and order dated 18/04/1975 passed in Writ Petition No. 1 of 1975, the detenu-brother of petitioner's husband was released and the order of detention against the said detenu was quashed and set aside. Inspite of the order being set aside in the year 1975, in the year 1978, vide Annexure "B" dated 22-3-1978 the Competent Authority, Bombay, passed an order under Sec. 7 of SAFEMA forfeiting the property held by her to the Central Government free from all encumbrances. No doubt, as the order indicates that the petitioner was given a fair opportunity of hearing by issuance of a registered notice which was refused by her, and thereafter she was served by affixture and it will be seen from the record that she has not chosen to appear before the Competent Authority, passed the order ignoring the fact that the order passed by the Detention Authority under the COFEPOSA Act has been set aside by the Delhi High Court. Appeal preferred against the order passed by the Competent Authority, Bombay, came to be dismissed for default by the Appellate Tribunal in F.P.A. No. 150 of 1979-80 dated 18/07/1983. It appears that, thereafter, the petitioner came to know about the decision of the Apex Court in the case of Union of India and Ors. v. Haji Mastan Mirza, delivered on 23/02/1984 and the decision of the Bombay High Court reported in the case of Rajabally Hirji Meghani v. Union of India and Anr., 1983(2) Bom. C.R. 5. It appears that, thereafter, an intimation by a registered letter was forwarded to the Competent Authority vide Annexure "E" dated 22-3-1984 pointing out the details. It was also pointed out that the decision rendered in the case of detenu has been set aside on 18-4-1975 and has been reported in a journal "The Lawyer" which is being published from Madras. (It is also indicated in the petition filed before Apex Court that the same is reported in I.L.R. (1975) II Delhi 820. See page 3 Para 5 of the petition annexed with the affidavit-in-reply). It was pointed out that in view of the fact that the order of detention was quashed and set aside by the competent Court, the SAFEMA does not apply at all. Obviously, as argued by Mr. Sanjanwala, the order being set aside, the Competent Authority had no jurisdiction to exercise powers under SAFEMA and therefore, the same is required to be quashed and set aside as the Competent Authority had no jurisdiction to pass the order.