9911796707
TMI Blog1995 (12) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... n that benefit of the provisions of section 9(1) of the Act has been given in respect of this property. Some other properties which were the subject-matter of the notice under section 6(1) of the Act have been left out for detailed reasons stated in the impugned order. The appellant has assailed the findings of the Competent Authority in respect of the forfeiture order of the properties tabulated above, both on facts as well as on points of law. The main contention being that the learned Competent Authority erred in holding that the husband of the appellant, late Shri Karim Bachu, had successfully completed the period of detention in terms of the detention order issued by the State of Gujarat, and that consequently, the appellant was covered by section 2(2)(c) of the Act. The plea is that the State of Gujarat, had revoked the order of detention, and by virtue of this revocation the provisions of the Act cease to apply either to the deceased husband of the appellant or to the appellant, as his spouse. On the appeal being heard earlier on the basis of certain statements made at the Bar by learned counsel for the appellant, the same was allowed on this question of applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh Shri S. K. Pathak, Deputy Director, was that the Act applies, inter alia, to all cases where a detention order under the COFEPOSA had been passed and the present appellant being a person covered by clause (c) of section 2(2) of the Act, also falls within the ambit of the forfeiture proceedings, and that unless the detention order is revoked or set aside in the circumstances covered by the provisos (i) to (iv) to section 2(2)(b) of the Act, it would not result in the same consequences, and cannot be equated with revocation as contemplated by the provisos (i) to (iii), or setting aside as provided by the proviso (iv) of this clause. We have given our careful consideration to this question and the respective contentions put forward by both sides. There is no disputing the fact that the revocation in this case is under section 11(1)(a) of the COFEPOSA, and not as a consequence of receipt of report of the Advisory Board or within the time-limit set out for making reference to the Advisory Board or review undertaken under section 9(3) or that of section 12A(3) of the COFEPOSA, nor is it a case where it could be said that the detention order was set aside by a court of competent jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and the detaining authority would not be entitled to make another order under section 3 of the COFEPOSA on the same grounds, whereas in cases of revocation simpliciter under section 11(1)(a), sub-section (2) of section 11 empowers the same authority to pass another detention order. We can also say on the basis of the dictum laid by the Supreme Court in the case of Hadibandhu Das v. District Magistrate, AIR 1969 SC 43, 48, that : " the power of the detaining authority must be determined by reference to the language used in the statute and not by reference to any predilections about the legislative intent. " Their Lordships were making these observations with reference to the provisions of section 13(2) of the COFEPOSA vis-a-vis section 11 thereof. But the same principles would apply while considering the extent of applicability or ambit of the provisos (i) to (iv) to section 2(2)(b) of the Act. We are, therefore, of the considered view that mere revocation of a detention order under section 11(1)(a) of the COFEPOSA is not enough and that other conditions contemplated by the provisos (i) to (iv) to section 2(2)(b) of the Act must prevail, in order to enable the affected pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19(1) of the Act, dated March 23, 1993, were acquired from income from unlawful activities of the husband and the source at least was not lawful or legally explained income of the appellant. At the time of hearing also, except for the arguments on points of law as to the implication and consequences of revocated order, no arguments were advanced on facts nor any other material shown or referred to which could make us take a view, different from the one taken by the learned Competent Authority. Shri Pathak also pointed out that everything was examined in detail by the Settlement Commission as well as by the income-tax authorities at the relevant time, and the source of investments made in the properties, which are now the subject-matter of forfeiture, were found to have been made either from undisclosed income or from income not explained as having come from lawful sources, and that no fresh evidence had been submitted before the Competent Authority or during the appeal proceedings, to show to the contrary. Earlier also, when the appeal was heard on April 8, 1994, the only emphasis was on the consequences of the revocation order, and no arguments on the merits were in fact advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 50,000, out of the total investment having been shown to be Rs. 2,35,000 as per the statement made before the Settlement Commission. As such, the learned Competent Authority held that here the appellant could be given the benefit of the provisions of section 9(1) of the Act. It was, therefore, ordered that in case the appellant or any person claiming to represent her or holding the property on her behalf, pays a fine of Rs. 60,000 being 120 per cent. of the unexplained portion of Rs. 50,000, then the property would be released from forfeiture. We find no error in this finding and uphold the same. We may also note at this stage that this building known as "Hotel Saira", was in occupation as per the record at the time of the proceedings, of certain persons, forming a partnership in the name of "Hotel Ashiana" ; the names of partners being_Smt. Hinaben J. Punjani, Shilpa Chandrakant Bhatt and Naynaben Liledhar Patel. Notices under section 6(1) were also issued to "Hotel Ashiana" and its partners, out of whom only Smt. Hinaben J. Punjani was served. In the reply to show-cause notice filed by the said Smt. Punjani, on her behalf as well as on behalf of "Hotel Ashiana", it was cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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