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2014 (12) TMI 356
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....nal petitioner of S.C.A. No. 11079/2000, respondent No. 1 in L.P.A. No. 1053/2003 (who shall hereinafter be referred to as "AP-1, Affected Party No. 1") was detained by the competent authority, vide order dated 21-7-1982 passed by the State Government, under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "the COFEPOSA"). The order of detention was revoked by the State Government on 18-10-1982. However, AP-1 was again detained by a fresh order of detention under COFEPOSA passed on that very day, i.e. on 18-10-1982. Ultimately, he was released from detention on 23-7-1983 on completion of the detention period. 2.1 It appears that, subsequently, the competent authority under the SAFEMA issued notice to AP-1 for initiating proceedings for forfeiture of the property under the said Act on the alleged ground that he was holding properties purchased and/or developed by tented money earned out of smuggling activities. The above Notice was, however, withdrawn. Thereafter, on 26-6-1986 and 7-8-1986, both AP-1 and his wife, i.e. original petitioner of S.C.A. No. 11080/2000, respondent No. 1 in L.P.A. No. 1054/2003 (who....
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.... taken. He submitted that when a statutory forum has been created by law for redressal of grievance, writ petition should not be entertained, ignoring the statutory dispensation. He submitted that the High Court generally does not enter into a question which demands an elaborate examination of evidence to establish the right, to enforce which, the writ is claimed. The High Court, therefore, does not act as a Court of Record against the decision of a Court or a Tribunal to correct errors of fact and does not, by assuming the jurisdiction under Article 226 of the Constitution of India, trench upon an alternative remedy provided by the Statute for obtaining relief. Where it is open to the aggrieved petitioner to move another Tribunal or another jurisdiction for obtaining redress in a manner provided by the Statute, the High Court, normally, will not permit by entertaining a petition under Article 226 of the Constitution of India, the machinery created under the Statute to be by-passed and will leave the party applying to it to seek report to the machinery so set-up. 4.2 In support of the above submissions, Mr. Desai has placed reliance upon the following decisions : a. ....
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....pur v. Royal Trading Company, (2005) 11 SCC 518. n. Jalaram Corporation v. State of Gujarat and Others, 1996 (3) GCD 445 (Gujarat). 6. Learned counsel Mr. Desai further submitted that the decision in State of Gujarat v. Patel Raghavnath, (1969) 2 SCC 187, relied upon by learned senior counsel Mr. B.B. Naik appearing on behalf of respondent, original petitioner, wherein, the view has been taken that proceedings have to be initiated within a reasonable time, would not apply to the case on hand since the said judgment is in respect of the provisions of Section 65 of the Bombay Land Revenue Code. 6.1 Learned counsel Mr. Desai drew our attention to the decisions rendered in M/s. Yashkamal Builders, Baroda v. State of Gujarat, 1989 (1) GLR 382 and Niranjanbhai Bhagwanbhai Patel and Others v. State of Gujarat, Through Secretary and Others, 2005 (2) GLR 1493 wherein, the view has been taken that powers u/s 65 of the Bombay Land Revenue Code are administrative in nature and that they are not even quasi-judicial. He, therefore, submitted that the principle of "unreasonable time" would not apply in the facts of the present case. 7. Lear....
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.... and Others v. The Superintendent of Taxes, Dhubri and Others, AIR 1964 SC 1419 (1). b. Titaghur Paper Mills Company Ltd. and Another v. State of Orissa and Others, (1983) 2 SCC 433. c. Commissioner of Income-Tax and Others v. Chhabil Dass Agarwal, (2014) 1 SCC 603. 11. Learned counsel Mr. Desai lastly submitted that the records available with the competent authority showed that the original petitioner had entered into a cash transaction regarding a property which was not registered. Therefore, notice as contemplated under the SAFEMA was issued to the original petitioner. However, the learned single Judge set aside the notice without appreciating the fact that it was the duty of the purchaser to disclose the source of income behind the cash transaction. The learned single Judge lost sight of the provisions of the Finance Act, 1973 where the tax limit has been fixed at Rs. 15,000/. The property was purchased for more than Rs. 30,000/ through the power of attorney, who was the original petitioner-husband, which has subsequently, gone in the hands of the other original petitioner-wife. 12. Learned ....
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.... attention to the provisions of Section 6(1) of the SAFEMA and submitted that the competent authority is bound to record its subjective satisfaction and the reasons for such belief. However, in the present case, it is apparent that the action of issuance of notice itself is a malice in law and arbitrary. He, therefore, submitted that the learned single Judge was completely justified in setting aside the notices by exercising writ jurisdiction under Article 226 of the Constitution of India. 14.4 In support of his submissions, learned Senior Advocate Mr. Naik has placed reliance upon the following decisions : a. Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta and Another, AIR 1961 SC 372. b. Chhanalal A. Patel, President, District Local Board, Mehsana v. State of Gujarat, AIR 1961 Gujarat 27. c. Ram Chand and Others v. Union of India and Others, (1994) 1 SCC 44. d. Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim, (1997) 6 SCC 71. e. Whirlpool Corporation v. Registrar of T....
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....ian currency of Rs. 72,766/-. He was also found to be involved in a case where 16 packages of contraband - Heroine, weighing 06 Kgs. valued at Rs. 12.80 Lacs, was seized from him on 2-11-1983. 17. Considering his antecedents and criminal record, AP-1 was served with the show cause notice dated 26-6-1986 issued u/s 6(1) of the SAFEMA and necessary proceedings were initiated. Ultimately, vide order dated 30-6-1999, the properties mentioned in the Schedule to the show cause notice were held to be illegally acquired properties and they were ordered to be forfeited free from all encumbrances u/s 7(3) of the SAFEMA. No appeal was filed by the aggrieved party within the stipulated period and therefore, possession of the immovable properties was taken over by the office of the competent authority 3-8-2000 and 6-8-2000. 18. It appears that, subsequently, the competent authority issued the impugned show cause notices dated 8-8-2000 u/s 6(1) of the SAFEMA in respect of the following two properties : A. Agricultural land bearing survey Nos. 646 & 870 (paikees), ad measuring 10 acres 34 gunthas and 7 acres 1 gunthas respectively, held by AP-2. The said....
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....ances worth crores of rupees. In this background, we believe that if there was a genuine lapse on the part of the competent authority in not bringing the aforementioned two properties under the purview of the SAFEMA, it is not so serious that the entire proceedings should be dropped since the stake involved has huge bearing on the national economy. All necessary steps for making applications seeking details of the properties held by the detenue and his relatives were made to the income tax authorities, Talaticum-mantri, all revenue authorities, local bodies and after making all such enquiries, the steps were sought to be taken but, the properties included in the notice impugned in the petitions was not disclosed even after enquiries by the competent authorities and once it came to the knowledge of the competent authority, the impugned notice was issued. 22. Apart from that the proceedings are at the notice stage only. If the said two properties are acquired out of white money, then the competent authority would pass appropriate orders in that regard. However, considering the past record and criminal antecedents of the original petitioners and when different immovable and mo....
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.... accounts or other relevant material, that among the properties acquired by a smuggler, which of them or portions thereof, are attributable to violation of law. It is probably for this reason that the burden of proving that the properties specified in the show cause notice are not illegally acquired properties is placed upon the person concerned. The intent of the Legislature is clear from the Statement of Objects and Reasons of the Act. For this reason also, the SAFEMA does not prescribe any time-limit for issuance of show cause notice u/s 6(1). 25. The next question that requires consideration is whether the competent authority had "reasons to believe" that the properties of the original petitioners are "illegally acquired properties" under the definition of SAFEMA. Section 6(1) of the SAFEMA provides that the competent authority is empowered to serve a notice of forfeiture upon such person whom it has reason to believe that all or any of the properties of such person is illegally acquired. The condition precedent for issuing a notice u/s 6(1) is that the authority should have reason to believe that all or any of such properties are illegally acquired properties and the r....
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....uction before the Income Tax Department for their scrutiny. I have reasons to believe that the said immovable property has been purchased and the construction thereafter had been made by AP-1 from his illegal sources of income and has got entered the name of AP-3 in the revenue records for name sake only. It is further seen that AP-1 resides in the said house along with AP-3 and thus enjoys and controls the said property." 25.3 On a plain reading of the above notice, it is apparent that the authority had sufficient reasons to believe that the said two properties had been illegally acquired. The authority recorded the above satisfaction on the ground that neither AP-2 nor AP-3 had any ostensible source of income. They were not income tax assessees. In spite of that the properties stood in their name and also in the revenue records. 25.4 Considering the antecedents of AP-1 and his criminal record and when AP-2, who is the wife of AP-1, was found to be having no ostensible source of income and also not an income tax assessee, the impugned notice u/s 6(1) cannot be said to have been issued without arriving at a subjective satisfaction regarding the alleged financial man....
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....f the said judgment, the following observations have been made : "15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution, if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, ....
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...., then that would not render the detention order itself void ab initio but, would render further detention of detenue illegal and in such case, the detenue can be proceeded against under the SAFEMA. Considering the principle rendered in the above cases, we do find any illegality in the action of the competent authority in issuing the impugned notices. 30. An endeavour has been made by learned senior counsel Mr. Naik to show that the impugned judgment has been issued without application of mind inasmuch as the impugned notice does not specify the category under which the affected party is covered and it does not mention the earlier orders passed against the person concerned. However, learned senior counsel Mr. Naik submitted that the above points were not argued before the learned single Judge and that additional documents are sought to be produced for the first time before this Bench, which should not be permitted. 30.1 In response to the same, Mr. Desai has submitted that what is submitted by way of an additional affidavit are mere dates and details along with documents of the very case and as such is a detailed list of dates and events and therefore, there is no b....