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Gujarat High Court
Judgename :K.A.Puj
AYESABEN NUR MOHAMMAD - Appellant
Versus
COMPETENT AUTHORITY, s.A.F.E.M.A., AHMEDABAD - Respondent
SPECIAL CIVIL APPLICATION7406 of 2001,Civil Application10727 of 2001
Decided On : 08/25/2004
Constitution of India - Article 226 - Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 - Section7, 9, 6 , 11 , 2 , 6 (1) , 2 (2) (b) , ll (i) , 4 - Petitioner has filed this petition under Article of the Constitution of India challenging the order passed by the competent authority under of the Smugglers and Foreign Exchange Manipulators Act dated forfeiting the properties of the petitioner and the order passed by the appellate Tribunal dated confirming the order of the competent authority - Petitioner has also challenged the order of detention passed against dated on the ground that the said order of detention is not valid and/or already revoked and or not executed, and hence, the S. A. F. E. M. Act is not applicable to the petitioner - Petitioner praying for direction to the respondent competent authority to return back the possession of two vessels namely BDI seized and attached by the respondents on such terms and conditions as may be deemed just and expedient - Petitioner has also prayed for stay against the respondents restraining them from transferring or creating third party rights by alienating the said two vessels and has also sought for the permission to ply the said two vessels on such terms and conditions as may be deemed just and expedient - Petitioner is the wife who was detained under conservation of Foreign Exchange and Prevention of Smuggling Activities - Held, Court in the case of State decided is challenged in L. P. A. and the Division bench of this Court has granted stay against the said order has some force the fact still remains that in the present case petitioner has acquired the properties prior to the issuance of notice under Section of the S. A. F. E. M. A. The said property was acquired by the petitioner under the judgment and decree passed by the competent Civil Court said decree and judgment has become final - It is not just and proper for the appellate Tribunal to hold that the said suit was a collusive suit and the decree was obtained in a fraudulent manner to avoid the proceedings under S. A. F. E. M. A. Court also takes note of the finding arrived at by the C. E. G. A. T. holding that the property belonged to the petitioner and it was legally and lawfully acquired by the petitioner under the judgment and decree of the competent Civil Court is therefore of the view that not only on the legal ground but even on merits also the petitioner is held to be legal owner of the properties in question and hence neither the notice could have been issued against her nor the order of forfeiture could have been passed against the petitioner - Both the orders are therefore bad in law and contrary to the provisions of the Act and evidence on record and hence they are required to be quashed and set aside - Petition is allowed accordingly.
( 1 ) THE petitioner has filed this petition under Art. 226 of the Constitution of India challenging the order passed by the competent authority under Secs. 7 and 9 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short "s. A. F. E. M. A. Act") dated 26-11-1999 forfeiting the properties of the petitioner and the order passed by the appellate Tribunal dated 20-7-2001 confirming the order of the competent authority. The petitioner has also challenged the order of detention passed against shri Umer Haji Hasan Subhaniya (for short "the detenu") dated 29-12-1988 on the ground that the said order of detention is not valid and/or already revoked and or not executed, and hence, the S. A. F. E. M. A. Act is not applicable to the petitioner.
( 2 ) CIVIL Application No. 10727 of 2001 is filed by the petitioner praying for direction to the respondent No. 1 i. e. competent authority to return back the possession of two vessels, namely, MSV Shahe-A1 Bukhari BDI 74 and MSV shane A1 Mehboob BDI 724 seized and attached by the respondents on such terms and conditions as may be deemed just and expedient. The petitioner has also prayed for stay against the respondents restraining them from transferring or creating third party rights by alienating the said two vessels and has also sought for the permission to ply the said two vessels on such terms and conditions as may be deemed just and expedient.
( 3 ) THE brief facts giving rise to the present petition are that the petitioner is the wife of Shri Umer Haji Hasan Subhaniya, who was detained under conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (for short "c. O. F. E. P. O. S. A. Act") by an order dated 29-12-1988. The said order of detention was challenged by the detenu before the Calcutta High court and the stay was obtained against the execution of the said order. The said order of detention was revoked by the competent authority on 12-12-1989. Thus, the order of detention has not been executed against the detenu. The detenu has not undergone the detention by virtue of the stay granted by Calcutta high Court and before its period expired, the order was revoked, and hence, there was no order of detention in the eye of law.
( 4 ) IT is the say of the petitioner that by virtue of the order passed against the detenu, the petitioner was served a notice under Sec. 6 of S. A. F. E. M. A. Act and the order was passed by the competent authority on 26-11-1999 whereby the competent authority has come to the conclusion that the two vessels mentioned in the notice under Sec. 6 of the S. A. F. E. M. A. Act were liable to be forfeited being illegally acquired properties. The petitioner being aggrieved by the said order filed an appeal before the appellate Tribunal and the appellate Tribunal vide its order dated 20-7-2001 has confirmed the order of the competent authority.
( 5 ) IT is also the say of the petitioner that the properties which are forfeited were acquired by the petitioner much prior to the detention order having been passed against the detenu. The said properties were given by the detenu to the petitioner as prompt dower as the owner. The petitioner had filed Civil Suit no. 62 of 1984 in this connection and by judgment and decree dated 24-4- 1986, the Civil Court has come to the conclusion that the said two vessels are the properties of the petitioner. The said decree has not been challenged by anybody and has become final. It is, therefore, contended by the petitioner that even before the notice under S. A. F. E. M. A. Act was issued and before the order of detention was passed against the detenu, these properties have become the properties of the petitioner and there was no question of declaring them as illegally acquired properties.
( 6 ) IT is also the say of the petitioner that widi regard to the said two vessels, no objection certificate was not being issued by the Customs authority, and hence, the pe
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