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TMI Blog2010 (8) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted an explanation stating that the properties are not illegally acquired properties in terms of the provisions of the Act and, therefore, they are not liable to be forfeited. Thereafter, the competent authority, by order dated 30-8-1999 rejected all the contentions of the petitioner and held that the properties are illegally acquired properties and, therefore, ordered for forfeiture of the same in favour of the Government. Challenging the same, the petitioner appealed before the appellate tribunal under the Act in FLA No. 41/MDS/99. The appellate tribunal by order dated 4-7-2001, rejected the appeal thereby holding that the forfeited properties were acquired by the petitioner with the illegal earnings of the convict Mr. V.P. Selvaraj. Accordingly, the tribunal dismissed the appeal. Aggrieved over the same, the petitioner is, now, before this Court with this writ petition. 2. In this writ petition, the petitioner would raise mainly the following grounds :- (i) The competent authority, in the notice issued under 6(1) of the Act, had not indicated the reasons which made him to believe that the properties are illegally acquired properties in terms of the Act. (ii) The competent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question and the convict. (iv) Under Section 8 of the Act, there is a presumption that the properties of the relatives of the convict are illegally acquired properties and to rebut the said presumption, such relative should prove to the satisfaction of the competent authority that the properties were not acquired from out of the illegal earnings of the convict. Such presumption raised under Section 8 of the Act would also form the basis for issuing notice by the competent authority. (v) The competent authority as well as the appellate authority have found that the petitioner has failed to discharge his burden under Section 8 of the Act to prove that the properties in question are not illegally acquired properties in terms of the Act. From out of the materials available on record, the competent authority as we'll as the appellate authority were fully satisfied that the properties are illegally acquired properties and, therefore, they have rightly ordered for forfeiture which does not require any interference at the hands of this Court, it is contended. 4. I have considered the rival submissions and also perused the records carefully. 5. At the outset, I have to state that it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding burden of proof will become otiose and the very purpose of enacting such a Section would be defeated." 6. In the case on hand, the learned counsel appearing for the 2nd respondent has produced the original records. A perusal of the same would go to show that the competent authority under the Act has recorded the reasons for issuance of notice under Section 6(1) of the Act on 28-7-1988. A further perusal of the same would show that there is a reference about the convict Mr. V.P. Selvaraj and there is also a reference that the petitioner being a relative is a person within the meaning of Section 2(2)(c) of the Act r/w Section 2(2)(a)(i) and explanation thereunder. There are also details with reference to the dates of taking possession by the petitioner and the cost of purchase of these properties. The following are the details regarding the house properties owned by the petitioner :- Sl. No. Location Date of possession Cost 1. No. 7, West Kadalangudy Street, Kumbakonam Constructed in 1975 Rs. 60,040/- 2. No. 50, Iyengar Street, Kumbakonam 1/12/92 Rs. 6038/- 3. No. 102 and 103 , 103A, Big Street, Kumbakonam 2/8/62 Rs. 36000/- 4. No. 101, Big Street, Kumbako ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 6 of the Act. It cannot be said that there was non application of mind on the part of the authority. A detailed documentation of all the materials which were gathered by the competent authority and the discussion made thereunder would go to clearly establish that the competent authority had proper application of mind to find as to whether there were reasons to believe that the properties in question were illegally acquired properties in terms of the Act. Therefore, the contention of the learned counsel for the petitioner that the notice and the consequential proceedings are vitiated for non application of mind on the part of the competent authority is only liable to be rejected. 11. Nextly, a perusal of the above order would also go to show that the competent authority had recorded reasons for the belief that the properties are the illegally acquired properties warranting issuance of notice under Section 6 of the Act. Thus, the requirements of Section 6(1) of the Act have been satisfied and so the notice cannot be stated to be without jurisdiction. 12. The learned counsel for the petitioner would submit that it is not as though, every alleged illegally earned property of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia, (2003) 7 SCC 436. 15. But, the learned counsel appearing for the 2nd respondent would rely on a judgment in P.P. Adbulla and another v. Competent Authority and others, (2007) 2 SCC 510 = 2007 (207) E.L.T. 163, the Hon'ble Supreme Court in para 7 has held as follows :- "7. Learned counsel submitted that it has been expressly stated in Section 6(1) that the reason to believe of the competent authority must be recorded in writing. In the counter-affidavit it has also been stated in paragraph 8 that the reasons in the notice under Section 6(1) were recorded in writing. In our opinion this is not sufficient. Whenever the statute required reasons to be recorded in writing, then in our opinion it is incumbent on the respondents to produce the said reasons before the Court so that the same can be scrutinised in order to verify whether they are relevant and germane or not. This can be done either by annexing the copy of the reasons along with the counter-affidavit or by quoting the reasons somewhere in the counter-affidavit. Alternatively, if the notice itself contains the reason of belief, that notice can be annexed to the counter-affidavit or quoted in it. However, all that has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus : "Section 2 (c) refers to every person who is a relative of a person referred to in clause (a) or clause (b). Section 2 (e) refers to any holder of any property which was at any time previously held by a person referred to in clause (a) or clause (b). When we read Section 6(1) and 6(2) along with Section 2(2)(e) it is evident that notice contemplated under Section 6(2) is to any other person if the property does not stand in the name of the detenu. So far as this case is concerned, property stands in the name of wife and brothers. Admittedly, notices have been issued to them as contemplated under Section 6(1). We are of the view, non issue of notice to the detenu will not vitiate the proceedings as against their relative. 19. Aggrieved over the said judgment of the Kerala High Court, the petitioner therein took up the matter before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No. 36959 of 2009 wherein the Hon'ble Supreme Court passed the following order :- ".... in our view, the impugned order does not suffer from any legal infirmity, it is not in dispute that O.P. No. 15835 of 1996 filed by the petitioner for quashing orders dated 17-11-1994 and 6-9-1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be questioned, that can be question only by questioning the reasons recorded in writing by him. The order of the competent authority has not been challenged." 22. Thus, this Court has already negatived the challenge to the validity of the notice issued under Section 6(1) of the Act. The said order has become final. Therefore, it is not open for the petitioner to once again raise the very same question regarding the validity of the notice stating that either the notice does not contain the reason for the belief or there is total non application of mind on the part of the competent authority. In that case, this court has clarified that the reasons recorded could alone be challenged in future. The petitioner has not challenged the same by filing any writ petition. However, on that score, the petitioner cannot be prevented from challenging the same either before the competent authority or before the appellate authority because such recording alone gives jurisdiction to the competent authority to proceed further. That is the reason why this court heard in detail the arguments advanced by the learned counsel appearing for the petitioner assailing the correctness of the reasons rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring for the petitioner, per contra, would submit that the Chartered Accountant who appeared on behalf of the petitioner had produced all the records showing the income of the petitioner from out of which the burden of the petitioner under Section 8 of the Act had been discharged. In this regard, he would submit that the properties which were originally purchased during 1960s' have been duly accounted for to the income tax department. The sources of acquisition of these properties are not in dispute. The said sources are legal sources of the petitioner. Therefore, the learned counsel would submit that in respect of these immovable properties it cannot be said that they were illegally acquired from out of the illegal earnings of the convict. To this extent, the petitioner may be justified in his submissions. But, the case of the 2nd respondent does not stop with that. It proceeds further. According to the 2nd respondent, during 1970s', the petitioner demolished the existing building and made fresh constructions of a lodge investing a huge amount. The source for the said investment was not disclosed by him. A sum of Rs. 25,000/- was disclosed for the first time under the Voluntary Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial authority, he is expected to adhere to the principles of natural justice and to the basic principles of evidence. Of course it is not necessary for the competent authority to write a detailed judgement like that of a civil court. Nevertheless, it is incumbent on the competent authority to follow the basic principles of the Evidence Act and then to decide the issues involved based on the evidences so produced before him. The right to hold a property, though no more a fundamental right, still, is a constitutional right under Article 300A of the Constitution of India. Depriving a citizen of his legally acquired property otherwise than in accordance with law, will be unconstitutional. Therefore, every endeavour should be made to find as to whether the properties are really illegally acquired properties from out of the earnings of the convict. The nexuses, as discussed above, should be established. It is needless to point out that while holding such an enquiry, for the purpose of deciding the above issues, the competent authority is expected to strictly adhere to the principles of natural justice also. The principles of natural justice have been held by the Hon'ble Supreme Cou ..... 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