The burden of proof lies on the party claiming acquisition legality under SAFEMA, which failure to discharge results in forfeiture of properties.

ORDER :

1. Under assail is the order dated 29.11.1999 passed in FPA.No.11/MDS/96 and FPA.No.13/MDS/96 before the Appellate Tribunal for Forfeited property, New Delhi. The unsuccessful appellants before the Appellate Tribunal have preferred the present writ petitions before this Court.

2. The case of the petitioners' is that their father Mr.S.A.Jawersha was detained under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [hereinafter referred to as “COFEPOSA”]. The fundamental rights of the citizen were suspended during the emergency period. Therefore, their father was unable to challenge the detention order, while he was under detention. However, he had challenged the same after revocation of emergency:

(i) On 31.09.1976, show cause notice was issued to their father under Section 6 (1) of the Smugglers and Foreign Exchange Manipulators (forfeiture of property) Act, 1976 [hereinafter referred to as “SAFEMA”] calling upon him to show cause as to why the properties could not be forfeited under Section 7 (1) of the SAFEMA Act, as the properties were illegally acquired from the unexplained sources of income.

(ii) Similarly notices were also issued to the mother of the petitioners' and the same were received by both petitioners. The petitioners' parents have submitted detailed reply to the competent authority. The income derived by the writ petitioners were shown by their mother in their personal accounts, she had received cash gifts at the time of her marriage on 03.06.1995 and also received money from petitioners' maternal grand father. The properties purchased were again given on lease or rental basis and from the accrued income and interest subsequent properties were purchased. The competent authority rejected the explanations and statement of accounts offered by their mother and ordered forfeiture of properties.

(iii) The petitioners have preferred an appeal before appellate Tribunal and have also filed an application to receive the additional evidence under Rule 15 of the SAFEMA. The appellate Tribunal heard the matter on 14.07.1999 and directed the competent authority to receive the additional evidence and record findings. The Appellate Tribunal vide order dated 14.07.1999 held that no notice as per law was given to the writ petitioners as they were minors at that point of passing the forfeiture order and therefore fixed a personal hearing before the competent authority on 18.08.1999.

(iv) Accordingly, the petitioners have appeared before the Competent authority through their lawyer and filed objection to forfeiture notice and also filed paper book consisting of documentary evidence to establish that the properties were purchased by their maternal grand father and their mother respectively when they were minors. The competent authority rejected the same on the ground that the petitioners have not established the source of the sources. They preferred an appeal before the Appellate Tribunal.

(v) The appellate Tribunal heard the appeal on merits along with the applications and the paper book submitted by the petitioners before the competent authority and dismissed the appeal vide order dated 29.11.1999. Aggrieved over the same, unsuccessful appellants before the appellate Tribunal have hence preferred these writ petitioners.

3. The learned counsel appearing on behalf of the petitioners would