SCA/10677/2002 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10677 of 2002 With CIVIL APPLICATION No. 12495 of 2005 In SPECIAL CIVIL APPLICATION No. 10677 of 2002 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 ? ========================================================= UKABHAI MORABHAI TANDEL - Petitioner(s) Versus COMPETENT AUTHORITY & 3 - Respondent(s) ========================================================= Appearance : MR RAJESH K SHAH for Petitioner. MR DC SEJPAL for Respondent no.3. Mr.L.R.Pujari, AGP for respondent no.4. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 17/04/2008 ORAL JUDGMENT 1. The petitioners have instituted the present petition by SCA/10677/2002 2/9 JUDGMENT invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer for issuance of a writ , order or direction to quash and set aside the Notice dated 22-9-1988 (Annexure -A) and order passed by the Competent Authority dated 16-3-2001 (Annexure – C) and also the order of the learned Appellate Tribunal dated 6-8-2002 (Annexure – D) intimated vide F.P.A. No.15/Rom/2001/699 dated 13-8-2002. 2. The facts leading to the institution of the present petition, briefly stated, are that the petitioner is a fisherman and agriculturist by birth and he earns his livelihood only from fishing and agricultural work. The petitioner has received a notice from the respondent no.1 on 22-9-1988 under Section 6(1) of Smugglers and Foreign Exchange Manipulators( Forfeiture of Property Act,1976 (SAFEMA on the ground that the petitioner was convicted under Section 135 of the Customs Act on 16-6-1979. It is the case of the petitioner that there was no allegation to the effect that the petitioner was previously convicted in any proceedings under Section 6(1) of the (“SAFEMA” for short) and any other proceedings were initiated or pending or dropped by the competent authority. According to the petitioner, the competent authority had issued notice on 22-11-1979 on the basis of the same incident wherein his brother Kalanbhai Morarbhai Tandel was detained and the petitioner was shown as an affected person vide notice bearing no.CA/AHD/2(c)/U-14/79-80 dated 22-11-1979. According to the petitioner, the respondent no.1-competent authority had also SCA/10677/2002 3/9 JUDGMENT mentioned the same allegations as also the property in the notice dated 22-9-1988. According to the petitioner, the notice Annexure “B” was dropped by the respondent no.1-authority. However, on the same basis and on the basis of conviction under Section 135 of the Customs Act, the respondent no.1-authority has initiated proceedings on the same subject matter and passed the order on 16-3-2001 forfeiting the properties in question. The petitioner has preferred appeal against the order passed by the respondent no.1- competent authority before the learned Appellate Tribunal which came to be rejected on 6-8-2002. Hence, the present appeal. 3. I have heard the learned Counsel for the parties and gone through the reasons recorded by the competent authority along with the show cause notice. 4. The learned Counsel for the petitioner Mr. R.K.Shah has mainly confined his arguments (i) that the first notice was issued on 22-11-1979. Thereafter, after a long lapse of time, second notice was issued by the respondent no.1 without referring to the contents of the first notice dated 22-9-1988 and so prima facie proceedings were not initiated within reasonable time and only on the ground of delay the notice as well as the order passed by the competent authority dated 16-3-2001 and the order of the appellate Tribunal dated 6-8-2002 confirming the same is required to be quashed ad set aside, (ii) that the land in question was purchased in the year 1968 i.e. before 20 years from the date of the issuance of SCA/10677/2002 4/9 JUDGMENT the second notice and before 32 years of the actual proceedings and date of order, and therefore, time barred and so also the petition is required to be allowed, (iii) that the petitioner was serving in the Navigation Department of the Government of India till 1964 and the petitioner was getting salary of Rs.250/-per month and it was increased to Rs.400/-per month. The petitioner was also getting agricultural income and also earning from fishing and from these sources of income, he saved money and he has purchased the land in question, (iv) that the petitioner has voluntarily disclosed his income before the Income-tax Department on 21-1-1969 whereby the petitioner has dislcosed all sources of income from which he saved the money, and (v) that the petitioner was able to establish that he has purchased the land in question from the legal source of income and reasonable explanation with sufficient evidence was produced by the petitioner but the same was not considered by the competent authority as well as by the appellate authority, and hence, the order passed by both the authorities are required to be quashed and set aside. 5. The learned Central Govt. Standing Counsel Mr. Divyesh Sejpal for the respondent -Union of India argued that brother of the present petitioner Mr. Kalanbhai Morarbhai Tandel was detained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Government of India vide order dated 21-8-1976 and the said order has neither been revoked by the State Government nor quashed by SCA/10677/2002 5/9 JUDGMENT any Court of competent jurisdiction, and hence, the petitioner being the brother of the detenu-Kalanbhai Morarbhai Tandel falls within the purview of Section 2(2)(c) of “SAFEMA”. Learned Counsel Mr. Sejpal next contended that the show cause notice issued under Section 6(1) of “SAFEMA” against the present petitioner was challenged by the present petitioner along with his brother by filing Special Civil Application no.699 of 1980 and proceedings initiated on the basis of such notices were stayed by this Court in March, 1980 and the stay was lifted partially in April, 1987. Mr. Sejpal next argued that the petitioner was also convicted on 16-6-1979 under Section 135 of the Customs Act, 1962 by the Addl. Chief Magistrate, Vadodara in Criminal Case no.79 of 1978 (Annexure C) to the affidavit-in-reply, and hence also, cause of action arises for fresh show cause notice under Section 6(1) and notice dated 22-9- 1988 was issued proposing to forfeit the properties. Mr. Sejpal next submitted that because of the above referred to facts after lifting the say granted by this Court, the second notice was issued in the year 1988 and so there is no delay in initiating proceedings and proceeding were initiated within reasonable time. Mr. Sejpal next argued that merely by not referring the first notice in the second show cause notice, it could not be said that the second notice was illegal and issued after a long lapse of time. Mr. Sejpal next argued that no evidence is produced by the present petitioner in reference to contentions raised by him that he was working in the Navigation Department and that except the bare words there is nothing on SCA/10677/2002 6/9 JUDGMENT record to show that he had other legal sources of income from which he derived income from salary. Mr. Sejpal next argued that after giving full opportunity of hearing to both the parties and after considering all materials placed on record, the competent authority has passed the order which is legal and proper and which is also confirmed by the appellate authority by assigning cogent and convincing reasons, and hence, no illegality or irregularity has been committed by the respondent-authorities in issuing the notices in question as also the impugned orders, and therefore, the petition deserves to be dismissed. 6. This Court has gone through the entire record, perused the show cause notice and also the judgment and order passed by the competent authority as well as by the appellate authority. When the stay was granted it was not necessary to initiate proceedings, and therefore, there is no delay on the part of the department to initiate proceedings. As soon as the stay order was vacated by this Court the respondent-authority has issued the second notice and so proceedings were initiated within reasonable time and no delay is caused. It is pertinent to note that the petitioner has challenged the first notice which was issued on 22-11-1979 by way of filing Special Civil Application no.679 of 1980 including vires of the Act and in the same proceedings the said impugned notice was stayed during the pendency of the said petition and only in April, 1987 the stay was partially lifted. It is to be noted that during the pendency of the above referred petition before the Court, the petitioner was also SCA/10677/2002 7/9 JUDGMENT convicted under Section 135 of the Customs Act, 1962 by the Court of J.M.F.C., Valsad, in Criminal Case no.79 of 1978 by his judgment dated 6-6-1979 holding therein that regarding the above referred facts of conviction of the present petitioner, the case of the petitioner came under the purview of Section 2(2)(a)(i) of the Act. It is also to be noted that after the stay was lifted the competent authority issued a fresh notice dated 22-9-1988 against the petitioner. It is also found that the earlier notice dated 22-11-1979 and the second notice dated 22-9-1988 are both issued for the same properties and against the same person i.e. the present petitioner. As discussed above, subsequent development of conviction which has come within the knowledge of the authority and as cause of action arose also for the same to initiate proceedings under Section 2(2)(a)(i) of the Act, the competent authority also took the same grounds in the notice and so by no stretch of imagination, it can be said that the proceedings initiated in pursuance of the notice dated 22-11-1979 had been dropped. As discussed above, as there was stay granted by this Court in pursuance of the first notice dated 22- 11-1979, the proceedings could not take place and in such circumstances, it cannot be said that any delay is caused in initiating the proceedings. In view of the above, in the opinion of this Court, the second notice dated 22-9-1988 is issued against the petitioner in continuation of the first notice dated 22-11-1979 and merely because there is absence of reference to the first notice in the second notice, it could not be said that the second notice was SCA/10677/2002 8/9 JUDGMENT not issued in pursuance of the first notice dated 22-11-1979. 7. Coming now with regard to the properties acquired by the petitioner, it is the submission of the learned Counsel for the petitioner that under the Voluntary Disclosure Scheme with the Income-tax Department the present petitioner has declared his agricultural income which was a legal evidence to the effect that the petitioner had income from agriculture. However, it may be noted that the appellate Tribunal while dealing with this issue has rightly held that the present petitioner had made voluntary disclosure as a calculated plan to regularise the earnings from his illegal activities relying upon the judgment of the Supreme Court in Tekchand vs. Competent Authority, 201 ITR 658. As regards the savings from salary to the tune of Rs.30,000/- during 1966 to 1968, the present petitioner has failed to produce any proof worth the name , leave apart salary slip, not even the identity card, of having served as a seaman in the Navigation Department. 8. Viewed in the light of the discussion as above, I find that the reasoning adopted and the conclusions arrived at by the competent authority as well as the Appellate authority are quite legal and proper which do not call for interference at the hands of this Court since the appellate authority has agreed with the findings arrived at by the competent authority on all material aspects. Thus, there is a concurrent finding of facts by the competent authority as well as the appellate authority, and therefore, this Court cannot enter into the arena of re-appreciation of evidence on record to come to a SCA/10677/2002 9/9 JUDGMENT different conclusion than the one taken by the authorities below. The scope of the powers while dealing with a petition filed under Article 226 of the Constitution is very limited and must be confined strictly to the errors apparent on the face of the record. Reappraisal of the evidence on record for finding out the error would amount to exercise of appellate jurisdiction which is not permissible. In this petition no grounds exist which would justify this Court to interfere. No evidence whatsoever has been produced to show that the properties in question were purchased out of licit source of income by the petitioner,and therefore, the impugned orders as well as the notice cannot be quashed and set aside. 9. In the result, the petition fails and is rejected. Rule is discharged. No costs. (M.D.Shah,J.) Civil Application no.12495 of 2005 In view of the order passed in main Special Civil Application no.10677/2002, this Civil Application does not survive and stands disposed of accordingly. (M.D.Shah,J.) lee.