IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 OP.No. 17101 of 2000(J) --------------------------------- PETITIONER(S): ------------------------- SMT.MARY THOMAS, W/O. LATE K.P.THOMAS, KOLLICKAL HOUSE, ONAKKUR VILLAGE, KOTTAYAM DIST. BY ADV. MR.M.G.KARTHIKEYAN RESPONDENT(S): ------------------------- 1. THE APPELLATE TRIBUNAL FOR FORFEITED PROPERTY, 4TH FLOOR, LOKNAYAK BHAVAN, KHAN MARKET, NEW DELHI 110 003. 2. THE COMPETENT AUTHORITY, OFFICE OF THE COMPETENT AUTHORITY, SAFEMFOPA & NDPS ACT, UTSAV NO.64/1, G.N.CHETTY ROAD, T.NAGAR, CHENNAI 600 017. 3. THE DISTRICT COLLECTOR, KOTTAYAM. BY ADV. MR .T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI R3 BY GOVT. PLEADER SMT.N.SUDHADEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RDER ON CMP. NOS.28151/2000 & 29646/2000 IN OP. 17101/2000 DISMISSED 04.12.2009 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 22.3.1999 PASSED BY THE 2ND RESPONDENT. P2:- COPY OF THE ORDER DTD. 22.6.1999 PASSED BY THE 2ND RESPONDENT. P3:- COPY OF THE JUDGMENT DTD. 29.7.99 IN OP. NO.19334/99 OF THIS HONOURABLE COURT. P4:- COPY OF THE ORDER DTD.1.5.2000 PASSED BY THE IST RESPONDENT IN MP. NO.57/MDS/99(COD) IN F.P.A. NO.15/MDS /99. P5:- COPY OF THE ORDER DTD. 6.6.2000 PASSED BY THE 2ND RESPONDENT AND RECEIVED BY THE PETITIONER ON 22.6.2000. P6:- COPY OF THE SLAE DEED NO.99/1972 DTD. 12.1.1972 OF S.R.O. ETTUMANOOR. P7:- COPY OF THE SALE DEED NO.1985/1969 DTD. 3.10.1969 REGISTERED BEFORE THE SUB REGISTRY OFFICE, KOOTHATTUKULAM. P8:- COPY OF THE DOCUMENT NO.3452 OF 1952 DTD. 26.11.1952 OF SUB REGISTRY, KOOTHATTUKULAM. P8(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.3452/1952 . P9:- COPY OF THE DOCUMENT NO.3169 OF 1953 DTD. 18.11.1953 OF SUB REGISTRY, KOOTHATTUKULAM. P9(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.3169/1953. P10:- COPY OF THE DOCUMENT NO.3692 OF 1953 DTD. 17.9.1953 OF SUB REGISTRY, KOTTAYAM. P10(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.3692/1953. P11:- COPY OF THE DOCUMENT NO.3727 OF 1953 DTD. 22.9.1953 OF SUB REGISTRY, ETTUMANOOR. P11(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.3727/1953. P12:- COPY OF THE DOCUMENT NO.44 OF 1954 DTD. 6.1.1954 OF SUB REGISTRY, KOOTHATTUKULAM. P12(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.44/1954. OP. 17101/2000 P13:- COPY OF THE DOCUMENT NO.1672 OF 1954 DTD. 26.5.1954 OF SUB REGISTRY, KOOTHATTUKULAM. P13(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.1672/1954. P14:- COPY OF THE DOCUMENT NO.2166/1954 DTD. 7.7.1954 OF SUB REGISTRY, KOOTHATTUKULAM. P14(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.2166/9154. P15:- COPY OF THE DOCUMENT NO.1887 OF 1955 DTD. 8.9.1995 OF SUB REGISTRY, KOTTAYAM. P15(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.1887/1955. P16:- COPY OF THE DOCUMENT NO.2946 OF 1965 DTD. 5.12.1955 OF SUB REGISTRY, KOOTHATTUKULAM. P16(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.2946/1956. P17:- COPY OF THE DOCUMENT NO.2945 OF 1956 DTD. 5.12.1956 OF SUB REGISTRY, KOOTHATTUKULAM. P17(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.2945/1956. P18:- COPY OF THE DOCUMENT NO.9 OF 1958 DTD. 3.1.1958 OF SUB REGISTRY, KOOTHATTUKULAM. P18(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.9/1958. P19:- COPY OF THE DOCUMENT NO.2637 OF 1958 DTD. 5.12.1958 OF SUB REGISTRY, KOOTHATTUKULAM. P19(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.2637/1958. P20:- COPY OF THE DOCUMENT NO.4071 OF 1959 DTD. 8.12.59 OF SUB REGISTRY, ETTUMANOOR. P20(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.4071/1959. P21:- COPY OF THE MALAYALAM DOCUMENT NO.1894/1965 DTD. 15.6.1965 OF SUB REGISTRY, ETTUMANOOR. P21(a):- FAIR ENGLISH TRANSLATION OF DOCUMENT NO.1894/1965. P22:- COPY OF THE RELEVANT PAGES OF THE PASS BOOK OF ORIENT CENTRAL BANK LTD., PIRAVOM OF THE ACCOUNT MAINTAINED BY LATE K.P.THOMAS FOR THE PERIOD 1947/1953. TRUE COPY P.A. TO JUDGE tss S.SIRI JAGAN, J. ================== O.P.No. 17101 of 2000 ================== Dated this the 4th day of December, 2009 J U D G M E N T The petitioner approached this Court by filing O.P.No.19334/ 1999 and obtained Ext.P3 judgment directing the Tribunal to consider and pass orders on the petitioner's appeal against Ext.P1 order of the competent authority under the the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, forfeiting certain properties belonging to the petitioner on the ground that the properties were acquired with the funds of her late husband who was a detenue under the Conservation of Foreign Exchange and Prevention of Smugglers Activities Act. By Ext.P4, that appeal was dismissed on the ground that the appeal was filed beyond the period of limitation prescribed under the Act and also beyond the period the Appellate Tribunal has power to condone delay. The petitioner is challenging Exts.P1 and P4 orders in this original petition. 2. Since, in view of the Division Bench decision of this Court in Assistant Commissioner of Central Excise v. Krishna Poduval [2005 (4) KLT 947], which holds that if an appeal is not filed within the time stipulated under a legislation restricting power of the appellate authority to condone delay, this Court cannot entertain writ petitions under Article 226 of the Constitution of India to consider the challenge against the original order on merits, I directed the counsel for the petitioner to argue on that question first. 3. The contention of the petitioner is that Ext.P1 order was served on the petitioner on 15.4.1999 and the petitioner had forwarded the appeal o.p.17101/2000 2 to the Tribunal on 20.5.1999, which the Tribunal refused to receive and returned the to the petitioner's counsel on 12.6.1999. According to the petitioner, the petitioner resubmitted the appeal immediately thereafter and the same was received by the Tribunal on 15.6.1999. Before the appellate authority, the competent authority produced acknowledgement signed by the petitioner having received the order of the competent authority on 26.3.1999. The Tribunal directed the petitioner to produce the cover in which the appeal filed by the petitioner was returned by the Tribunal without accepting the same. The petitioner was not able to produce the same. Therefore, the Tribunal concluded that, in the absence of any other evidence to show that the petitioner filed appeal on 20.5.1999, the date of filing the appeal was taken as 15.6.1999. Since such filing was beyond the condonable limit prescribed in the Act, the Tribunal rejected the same. 4. Before me also the petitioner is unable to give any convincing evidence to show that the petitioner had in fact filed the appeal within the condonable limit prescribed under the Act. In the decision in Krishna Poduval's case (supra), a Division Bench Division Bench of this Court had, relying on the decision of the Supreme Court in Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants, Kanpur, reported in (1975) 35 STC 413, held as follows: 7. At the outset we may state that in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot get the appeals revived and heard on merits by resorting to the discretionary remedy before this Court under Article 226 of the Constitution of India. Once o.p.17101/2000 3 the period of limitation has run itself out and the appellate authority does not have power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies of the appellants come to an end just like in the case of a time barred suit and the respondents cannot, by invoking the discretionary remedy under the extraordinary jurisdiction of this court under Article 226 of the Constitution of India, resurrect their unenforceable cause of action and require this court to consider their contentions against the original orders on merit. That would amount to defeating the very law of limitation which we are not expected to do under Art.226. If we are to entertain the contentions of the respondents on merits, that would amount to negating the law of limitation which we have no jurisdiction to do under Article 226 and which may even lead no anomalous results. We are not satisfied that the jurisdiction of this Court under Art.226 of the Constitution of India is so wide as to resurrect a cause of action which has become unenforceable on account of the law of limitation. Further, we are of the firm opinion that the jurisdiction under Art.226 of the Constitution of India cannot be invoked against express statutory provisions, however harsh the effect of the provisions may be on an assessee or litigant.” In view of the said decision, I do not think that I can consider the validity of Ext.P1 in proceedings under Article 226 of the Constitution of India when appeal filed against that order has become barred by limitation and has been dismissed as such. Accordingly, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge o.p.17101/2000 4 S.SIRI JAGAN, J. ================== O.P.No. 17101 of 2000-J ================== J U D G M E N T 4th December, 2009