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Gujarat High Court
Judgename :B.C.PATEL, R.M.Doshit
DHANIBEN MAKANBHAI TANDEL - Appellant
Versus
UNION OF INDIA - Respondent
S.C.A. 1778 of 1984
Decided On : 05/03/1996
This Court taking those averments to be true shall proceed with the matter in the wake of affidavit filed on behalf of the respondent No. 2 stating that the petition is filed before the Apex Court being Criminal Writ Petition No. 224/89 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 Honble Supreme Court of India. The copy of the petition is annexed alongwith the affidavit-in-reply.
[Para 1]
The petition which he has annexed to the affidavit-in-reply and which is pending before the Apex Court refers to six detention orders. From the contents of that petition, Mr. Sanjanwala submitted that the petitioner has challenged letter dated 13.2.1989 Annexure-I to the petition. Mr. Sanjanwala submitted that from the letter Annexure-I it appears that the property belonging to Makanbhai Naranbhai Tandel is forfeited and therefore, the Mamlatdar was requested to take appropriate action. He submitted that there is nothing to say that it is with regard to the same order which is a subject matter of this petition. The petition is preferred in the year 1984 and Rule was made returnable on 18.4.1984 protecting the petitioner, and therefore, there was no need for the petitioner to file another petition. We find some substance in the say of Mr. Sanjanwala. Mr. Sanjanwala is pointing out that in the petition which is annexed by the opponent, there is a reference to six detention orders and there is nothing to indicate that the subject matter filed in this Court is the same subject matter before the Apex Court.
[Para 5]
It is very clear from the averments that there is an order passed by the Competent Authority at Ahmedabad in February 1987. It is required to be noted that the impugned order is passed by the Competent Authority, Bombay. In view of clear picture, we fail to understand how learned Advocate for opponent stated that the order is the same. We find no merits in contention raised by the learned Advocate for opponent that parallel proceedings have been initiated.
[Para 8]
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, 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.
[Para 3]
( 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 Honble 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 petitioners 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 petitioners 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, delivere
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