Hirabhai Morarbhai Tandel v. Competent Authority Safema/ndps Unit

(1) MR. Sejpal, learned Advocate waives the service of rule on behalf of respondent Nos. 1, 2 and 4 and Mr. Pandya, learned AGP, for Respondent No. 3. By way of this petition, the petitioner has prayed to quash and set aside the order passed by the learned Appellate Tribunal for forfeiture of Properties, New Delhi dated 18-3-2008 in No. MP-9/bombay/2007 in FPA/ 1/bombay/2007 and to hear and decide the applications preferred by the petitioner being FPA/1/bombay/2007 as well as Stay application No. MP-10/bombay/2007, on merits.

(2) THE brief facts of the case are that on 15-11-1979 respondent No. 1, herein, issued notice to the petitioner under Section 6 (1)of the SAFEMA Act, 1976. In pursuance of that respondent No. 1 passed another order under Section 7 of the SAFEMA Act on 6-5-1980 without affording an opportunity of hearing to the petitioner. On coming to know about the same, the petitioner wrote a letter dated 22-7-1980 to the respondent No. 1 specifically stating therein that since he was abroad during the aforesaid period and that he had returned to India only on 20-6-1980, he was not aware about the notice dated 15-11-1979 issued by respondent No. 1. Then, the petitioner preferred Special Civil application No. 2384 of 1980 before the High court of Gujarat. In the said petition, the division Bench of the High Court of Gujarat was pleased to grant stay against the implementation and execution of the order dated 6-5-1980, on a condition that the petitioner will file an undertaking before the High Court of Gujarat that he will not dispose of the properties in question. On 25-10-1989, the honble Apex Court passed an order in I. A. No. 68/100/09 in TP No. 457-89/89 and stayed the further proceedings of the matters pending before the High Court of gujarat. Thereafter, the petitioner was issued a letter by one Mr. K. G. Naredi (C. A.)-II, Ahmedabad, Government of India, department of Finance (Department of revenue) requesting the petitioner to supply the copy of the undertaking filed by him before the High Court of Gujarat. Pursuant thereto, the aforesaid petition was withdrawn by the learned Advocate for the petitioner Mr. Shirish H. Sanjanwala on 9-8-1994, and therefore, the stay granted by the High Court of Gujarat in Special Civil Application No. 2384 of 1980 stood vacated. The petitioner, hence, informed his Advocate Mr. Sanjanwala to prefer appeal against the aforesaid order. But, the same could not be preferred within the stipulated time. Thereafter, petitioner came to know about the order dated 5-12-2006 passed by respondent no. 3 which is alleged to be passed without affording an opportunity of hearing to the petitioner. The petitioner applied for the certified copy of the impugned order and affirmed the memo of the appeal, stay application and condonation of delay application on 28-12-2006. Thereafter, the petitioner preferred Special Civil Application No. 14114 of 2007 before the Honble High Court. The aforesaid petition was disposed of by this court on 17-7-2007 on the basis of the statements made by the learned Advocate for the appellant and respondent. In pursuance of that the appeal of the petitioner came to be rejected by the competent Authority on the ground of limitation. Hence, the present petition.

(3) HEARD Mr. Shah, learned Advocate for the petitioner, Mr. Sejpal, learned Advocate for respondent Nos. 1, 2 and 4 and Mr. Pandya, learned AGP on behalf of respondent No. 3.

(4) MR. Shah, learned Advocate for the petitioner has submitted that the Court below ought to have taken into consideration the fact that the order under Section 7 was passed on 6-5-1980 whereas the letter to forfeit the properties in question was written by respondent No. 1 to respondent No. 3 on 29-12-2005. He has further submitted that the Court below has committed an error by not taking into consideration the fact that Special Civil Application No. 2384 of 1980 in which the interim relief was granted, the same was withdrawn by the learned Advocate Mr. Sanjanwala, but, since he (Mr. Sanjanwala) did not inform the petitioner, the appeal could not be preferred with the period of limitation. He has submitted that the Court below ought to have appreciated the fact that the petitioner was not given an opportunity of hearing before passing the impugned order by the respondent authorities. In support of his case, learned Advocate has placed reliance on an unreported decision of this Court (Coram : H. R. Shelat, j.) passed in Special Civil Application No. 5122 of 1996 in the matter of "nensi narandas Popat v. Competent Authority" wherein looking to the peculiar facts and circumstances of the case, the Honble Court directed the respondent Authorities to complete the formalities as provided under Rule 6 (7) and (8) of the SAFEMA Act and to decide the appeal of the petitioner after giving appropriate opportunity to the petitioner.

(5) ON the other hand, Mr. Sejpal, learned advocate for the respondent-Authorities have submitted that the competent authorities have passed the impugned order after taking into consideration all the facts and circumstances of the case, and hence, no interference is required by this Court. Mr. Pandya, learned AGP has also supported the stand taken by the learned Advocate for the respondent-Authorities.

(6) ON perusal of the documents placed on record it transpires that on 15-11-1979, respondent No. 1 passed order under section 6 (1) of the SAFEMA Act, 1976, and thereafter, another order dated 6-5-1980 under the provisions of Section 7 of the aforesaid Act was passed. However, it may be noted that the petitioner was out of country during the aforesaid period, and hence, he was not aware about the aforesaid orders passed by the competent Authorities. In support of his say, the petitioner has produced various documents i. e. , passport, letter issued by Government of Pakistan dated 7-11-1979 etc. The petitioner came to India on 20-6-1980 i. e. after a period of about one month from the date of passing of the order under Section 7 of the SAFEMA Act by the respondent Authorities. From the record, it further transpires that on coming to know about the aforesaid orders, the petitioner immediately wrote a letter dated 22-7-1980 specifically stating that as he was abroad at the time of issuance of notice under Section 6 (1) and passing of order under Section 7 of the SAFEMA Act, he could not remain present before the competent Authority and that without taking into consideration the said aspect and without giving an opportunity of hearing to the petitioner, the competent Authority has passed order under section 7 of the. In pursuance of that the petitioner approached the Honble High court of Gujarat by way of preferring special Civil Application No. 2384 of 1980 and obtained stay against the impugned order passed by the respondent Authorities. Pursuant thereto the Honble Apex Court stayed all the proceedings pending before the High court of Gujarat vide its order dated 25-10-1989. Thereafter, the aforesaid petition was withdrawn by Mr. Sanjanwal, learned advocate for the petitioner and on account of that the stay granted by the High Court of gujarat stood vacated. Then, the impugned order came to be passed by the respondent authorities. On coming to know about the impugned order, the petitioner preferred appeal which was rejected by the respondent authorities. However, from the record it transpires that while rejecting the appeal preferred by the petitioner, the Competent authorities have not taken into consideration the aforesaid factual aspect as well as the provisions of sub-rules (7) and (8) of Rule 6 of the.

(7) TAKING into consideration the provisions of sub-rules (7) and (8) of Rule 6 and in the light of the aforesaid factual aspect, the competent Authorities ought to have given appropriate opportunity of hearing to the petitioner and after completing necessary formalities provided under the said Act ought to have passed the appropriate order. As per the provisions of Rule 6 (7), the competent Authorities were duty bound to call the petitioner to show cause as to why his appeal should not be dismissed as the same being time barred. But, in the present case no such procedure is followed by the competent Authorities and straightway the impugned order was passed. Hence, in view of the above discussion and in view of the observation made in the unreported decision of this Court in the case of "nensi Narandas popat", this petition deserves to be allowed.

(8) IN the result, the petition is allowed. The order passed by the learned Appellate tribunal for Forfeiture of Properties, New delhi dated 18-3-2008 in No. MP-9/ bombay/2007 in FPA/1/bombay/2007 is quashed and set aside. The Tribunal is directed to hear and decide afresh the applications preferred by the petitioner being fpa/1/bombay/2007 as well as Stay application No. MP-10/bombay/2007 along with the Appeal, keeping in mind the provisions of sub-rules (7) and (8) of Rule 6 of the on merits and in accordance with law, without being influenced by the order of this Court, as early as possible preferably within a period of Four Months from the date of receipt of the order of this Court. Rule is made absolute. No order as to costs. Petition allowed.