2001 (9) TMI 1153 - HC - FEMA

Summary

Issues Involved:
1. Legality of the eviction order under SAFEMA.
2. Validity of the tenant's claim and rights.
3. Applicability of SAFEMA to the tenant.
4. Procedural fairness in the issuance of the eviction notice.

Detailed Analysis:

1. Legality of the Eviction Order under SAFEMA:
The petitioner challenged the order dated 15th January 1998, issued by the Competent Authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA), directing him to hand over the property within ten days. The order was based on the premise that the property was illegally acquired by Gawde and subsequently forfeited under SAFEMA. The court found that the eviction order resulted in a miscarriage of justice due to procedural lapses and lack of proper notice.

2. Validity of the Tenant's Claim and Rights:
The petitioner claimed tenancy rights over the property since April 1959, initially under Chavan and later attorned to Gawde. He continued paying rent to the Central Government after the property was forfeited. The court emphasized that the petitioner's tenancy rights must be determined through a proper inquiry and cannot be terminated without following due process. The Competent Authority failed to ascertain the nature of the petitioner's tenancy rights before issuing the eviction order.

3. Applicability of SAFEMA to the Tenant:
SAFEMA applies to specific categories of persons, including those convicted under certain acts or detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947. The court noted that the Competent Authority did not determine whether the petitioner fell within any of these categories. The Act's applicability must be established before any eviction can be enforced. The court highlighted that the petitioner, as a tenant, is not automatically subject to eviction under SAFEMA unless proven to be within the specified categories.

4. Procedural Fairness in the Issuance of the Eviction Notice:
The court found the notice issued to the petitioner vague and improper. The notice did not contain a clear list of documents required or specific reasons for eviction. It appeared to be a disguise for demanding arrears of rent and preparing for a public auction. The court emphasized the necessity of a show cause notice that offers the petitioner an opportunity to demonstrate his legal status and defend against eviction. The lack of such notice and opportunity to be heard rendered the eviction order procedurally unfair.

Conclusion:
The court set aside the impugned eviction order dated 16th January 1995 and remanded the matter back to the Competent Authority. The Authority is directed to determine whether the petitioner falls within the categories enumerated in Section 2 of SAFEMA. If the petitioner is found to be a tenant of Chavan and not within the specified categories, the Central Government must proceed against him under the appropriate Public Premises Eviction Act. The court ruled that the petitioner's tenancy rights and the legality of his eviction must be determined through proper legal procedures, ensuring fairness and adherence to the provisions of SAFEMA.