SCA/23917/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23917 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KALANBHAI MORARBHAI TANDEL - Petitioner(s) Versus COMPETENT AUTHORITY (SAFEMA) & 3 - Respondent(s) ========================================================= Appearance : MR RAJESH K SHAH for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2, 4, MR HARIN P RAVAL for Respondent(s) : 1, MR DC SEJPAL for Respondent(s) : 1, MR M.IQBAL A SHAIKH for Respondent(s) : 1, DS AFF.NOT FILED (R) for Respondent(s) : 3, Mr Apurva Dave, Asstt.GOVERNMENT PLEADER for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 14/03/2008 ORAL JUDGMENT 1. Heard Mr R.K. Shah, learned advocate for the petitioner and Mr D. C. Sejpal, learned Addl.Central SCA/23917/2005 2/5 JUDGMENT Government Standing Counsel for respondent No.1. 2. This court has gone through the entire records and the documents produced by Mr R.K. Shah, learned advocate for the petitioner. It appears that the learned advocate for the present petitioner had submitted written arguments before the Appellate Tribunal when notice was issued under section 6 of the Smugglers & Foreign Exchange, Manipulators (Forfeiture of Properties) Act, 1976. However, the Appellate Tribunal, while passing the order by dismissing the matter for default, has not considered this fact, which clearly shows non-application of mind on the part of the Appellate Tribunal. Assuming that the petitioner or his advocate has not remained present during the course of the proceedings, when written arguments were submitted by the learned advocate, it is the bounden duty of the Appellate Tribunal to decide the matter on merits. In this case, the matter is not decided on merits but was dismissed for default. In this view of the matter, the matter is required to be remanded to the Appellate Tribunal for taking fresh decision on merits and in accordance with law after giving opportunity of hearing to the petitioner. SCA/23917/2005 3/5 JUDGMENT 3. In view of the above, the petition is partly allowed. The impugned order passed by the Appellate Tribunal dated 18.10.2005 and the notice dated 29.11.2005 are quashed and set aside. Consequently, the matter is remanded to the Appellate Tribunal for taking fresh decision on merits and in accordance with law after giving opportunity of hearing to the petitioner as early as possible preferably within a period of three months from the date of receipt of the writ of this order. It is also directed that the competent authority will not take any coercive action against the petitioner till the matter is finally decided. Rule is made absolute to the aforesaid extent. [M.D. SHAH, J.] msp SCA/23917/2005 4/5 JUDGMENT SPECIAL CIVIL APPLICATION NO. 23917 OF 2005 CORAM; M D SHAH, J. Date: 14.3.2008 FARAD For the reasons stated in the judgment, the court has passed the following order: “In view of the above, the petition is partly allowed. The impugned order passed by the Appellate Tribunal dated 18.10.2005 and the notice dated 29.11.2005 are quashed and set aside. Consequently, the matter is remanded to the Appellate Tribunal for taking fresh decision on merits and in accordance with law after giving opportunity of hearing to the petitioner as early as possible preferably within a period of three months from the date of receipt of the writ of this order. It is also directed that the competent authority will not take any coercive action against the petitioner till the matter is finally decided. Rule is made absolute to the aforesaid extent.” PRIVATE SECRETARY msp SCA/23917/2005 5/5 JUDGMENT