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2024 Supreme(Guj) 2286
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ILESH J. VORA, VIMAL K. VYAS, JJ.
Mer Nagabhai Chhaganbhai Dedara & Ors. – Petitioners
Versus
Competent Authority Safema/Ndps, Mumbai & Ors. – Respondents
R/Special Civil Application No. 10076 Of 2011 With Civil Application (For Direction) No. 1 Of 2018
Decided On : 30-08-2024
For the Petitioners: Mr. Dilip L. Kanojiya
For the Respondents: Ms Shruti Pathak, AGP, Mr. Harsheel D. Shukla.
The sale of property after a forfeiture notice under SAFEMA is null and void, and relatives of detained individuals are subject to forfeiture provisions.
Headnote:(A) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 - Sections 2(2)(c), 6(1), 7, 11, and 19 - Petitioners challenged forfeiture orders regarding agricultural land acquired by a relative of a smuggler - The Competent Authority forfeited the land under SAFEMA, which was confirmed by the Appellate Tribunal - Petitioners claimed good faith purchase, unaware of forfeiture - Court held that the sale was null and void as it occurred after the notice of forfeiture, and petitioners could not claim protection under SAFEMA. (Paras 1-14)
(B) Legal Principle - The provisions of SAFEMA apply to relatives of persons against whom a detention order has been issued under COFEPOSA, and any transfer of property after notice of forfeiture is deemed null and void. (Paras 10-13)
(C)
Issues: Whether the petitioners, as bona fide purchasers, could claim protection under SAFEMA despite the forfeiture notice served prior to their purchase. (Paras 12-13)
(D)
Findings of Court:
The petitioners' claim of good faith was rejected as the vendor was aware of the forfeiture, and thus the sale was invalid. (Paras 12-14) (E)
Ratio Decidendi: The court reaffirmed that a valid order of detention under COFEPOSA is a prerequisite for SAFEMA proceedings, and any transfer post-notice of forfeiture is void. (Paras 10-13) (F)
Result: Petition dismissed.
JUDGMENT :
ILESH J. VORA, J.
1.By filing this petition under Article 226 of the Constitution of India, the petitioners have challenged orders dated 13.09.1977 and 20.09.1977, passed by the Competent Authority, Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short SAFEMA).
2. We have heard learned Senior Counsel Mr.Shirish Sanjanwala, assisted by learned counsel Mr.Dilip Kanojiya appearing for and on behalf of the petitioners, Mr.Harsheel D. Shukla, learned Standing Council appearing for and on behalf of respondent – Competent Authority and Union of India and learned AGP Ms.Shruti Pathak, appearing for and on behalf of the Collector, Jamnagar.
3. Facts and circumstances giving rise to file this petition are that the forfeiture of the agricultural land bearing Survey No.26, admeasuring 18 acres situated at Village: Sodsala, Jamkhambhalia – State of Gujarat is the subject matter in this petition.
(A) Detention order no.SB.IV/PSA/1774-6 dated 19.12.1974 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA) was issued by State of Gujarat against Mr.Jaku Abdulla Kara. According to stand of the respondents, the said order is neither quashed nor revoked.
(B) Notice of forfeiture under Section 6(1) of the SAFEMA issued in relation to the agricultural land and served upon Salemohmed Abdulla Kara as he happened to be relative (brother) within the meaning of Section 2(2) (c) of the SAFEMA, because the said agricultural land acquired by him illegally within the meaning of Section 3(1)(C)(iii) of the SAFEMA and also alleged that he was involved in the smuggler activities of his brother. In response to the notice, Salemohmed Abdulla Kara submitted his reply vide letter dated 29.01.1977 through his representative wherein he has stated that the land in question acquired in 1973 from his known source of income and the same had been disclosed to the Income Tax Authority. He was also given an opportunity to make oral submissions. At the time of hearing, his representative had submitted to the authority that the land in question had been purchased in 1971 for a sum of Rs.10,000/-, and the source of income was the salary and earned by selling the things, which he had bought from the other country when he was on tour. He also raised the legal issue that the affected person released on the advice on advisory board and in that view of the matter, the provisions of SAFEMA would not apply to him.
(C) The Competent Authority, Head Quarter at Bombay, appointed under SAFEMA vide its order dated 13.09.1977 by reasoned order, by exercising powers under Section 7 of the SAFEMA, forfeited the agricultural land and other properties, to the Central Government and accordingly, the Competent Authority directed the District Collector, Jamnagar to take a possession of the forfeited properties under Section 91 of the SAFEMA.
(D) Mr.Salemohamed Abdulla Kara against whom the said order has been passed, challenged the said order by filing an appeal before the Appellate Tribunal. Vide order dated 30.09.1978, the Tribunal, after hearing the parties, confirmed the forfeiture order passed under Section 7 of the SAFEMA and dismissed the appeal.
(E) Thereafter, Salemohamamed Kara, despite knowing that the agricultural property forfeited by the Competent Authority and the land has already been vest with the Central Government, he sold it vide registered sale deed dated 01.04.1998 to the present petitioner viz. Mer Nagabhai Chhaganbhai Odedra and Mer Lilabhai Odedra.
4.The petitioners, who are purchasers of the forfeited agricultural land, have filed this writ petition for quashing of aforesaid two orders viz. 13.09.1977 passed under Section 7 of SAFEMA and order dated 20.09.1977, directing the Collector, Jamnagar to take possession under Section 19(1) of the SAFEMA, inter alia stating that they are not relatives and associates with the detenue Jaku Kara or his brothers Salemohamed and they are b
