9911796707
TMI Blog1997 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants' predecessor Tayab Ali was also hit by section 11 of the SAFEMA. Consequently, in 1981, when the purchaser purchased this property from Tahira Sultana, she had no interest in the said flat which she could convey to the appellants' predecessor. In substance, it amounted to selling of the Central Government's property by a total stranger in favour of the purchaser. No title, therefore, in the said property passed to the appellants' predecessor. The appellants' predecessor, therefore, had no legal defence against the claim of the authorities in calling upon the appellants as heirs of the original purchaser to vacate and hand over the possession of the property to the Central Government as full owner thereof. Both the points 1 & 2 for determination, therefore, are answered against the appellants and in favour of the respondents. So far as point 3 at the time when the earlier order of October 12, 1977, was passed the said disputed property clearly reflected the utilisation of tainted money of ₹ 88,562. If subsequent dealing with the said property is found to be unauthorised and inoperative in law and if such subsequent transaction qua the said property remains a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under section 6(1) of the SAFEMA to the said Tahira Sultana calling upon her to show cause why the said flat purchased in her name should not be forfeited as illegally acquired property of the COFEPOSA detenu, her husband, the aforesaid Talab Haji Hussein. After hearing the said Tahira Sultana, the competent authority passed an order under section 7 of the SAFEMA on October 12, 1977, holding that the said property was illegally acquired property and, therefore, it stood forfeited to the Central Government free from all encumbrances as laid down under section 7(3) of the SAFEMA. The said Tahira Sultana challenged the aforesaid order of forfeiture by filing a Miscellaneous Petition No. 1680 of 1977, on the original side of the Bombay High Court. In the writ petition, she challenged both the order of detention of her husband as well as the order of forfeiture of the said property standing in her name. The said writ petition was moved in December, 1977. The High Court of Bombay admitted the said writ petition of Tahira Sultana on March 3, 1978, and stayed the order of forfeiture of the said property on an undertaking by her that she would not dispose of or alienate or encumber or pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayab Ali on December 13, 1982, in the Bombay High Court. The said writ petition was admitted on December 16, 1982, by the High Court and interim relief was granted to the purchaser. When it was brought to the notice of the Bombay High Court that, the purchaser's vendor, Tahira Sultana, had committed breach of the undertaking given by her in her pending writ petition against the forfeiture order of the flat in Dharam Jyoti Building, the High Court initiated contempt of court proceedings against the said Tahira Sultana and by an order dated February 21, 1983, held her guilty of contempt and imposed punishment of simple imprisonment for four weeks and a fine of Rs. 2,000 on the said Tahira Sultana. She underwent the said sentence. Tahira Sultana on her part filed Writ Petition No. 100 of 1984 on the criminal side of the Bombay High Court in 1984 again challenging the detention order and order of forfeiture of property, while the appellants' predecessor-in-interest Tayab Ali, the purchaser of the flat in question, moved the High Court of Gujarat on August 12, 1985, challenging the detention order of the COFEPOSA detenu, Talab Haji Hussein, which gave rise to the proceedings under the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal passed on April 18, 1995, dismissing her application for setting aside the ex parte order of the Appellate Tribunal. Her writ petition was dismissed by the Bombay High Court on August 21, 1995. The authorities took possession of Flat No. 1, Shivasthan Society, from Tahira Sultana on September 13, 1995. She filed a special leave petition before this court challenging the order of the Bombay High Court pertaining to Flat No. 1, Shivasthan Society, Bombay. It was dismissed by this court on November 24, 1995. Therefore, the forfeiture of Flat No. 1, Shivasthan Society, became final up to this court. The appellants, who were brought on record as heirs of the purchaser in the latter's Writ Petition No. 2841 of 1982, which challenged the forfeiture of the said Flat No. 25, Dharam Jyoti Building, and the direction to them to hand over possession ultimately came to be dismissed by a Division Bench of the High Court of Bombay by an order dated June 29, 1995, and that is how the appellants are before us in this appeal. We may also note at this stage that Tahira Sultana's Miscellaneous Petition No. 1680 of 1977 was withdrawn by her before the Bombay High Court with a vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Jyoti was again re-converted into cash and was utilised for purchasing another immovable property. Therefore, the tainted money could be traced to the said property in Shivasthan Society and could be said to have ultimately resulted in the purchase of Shivasthan Society property and which now is likely to fetch Rs. 65 lakhs as seen from the auction notice dated July 24, 1996. Hence, the purchaser's transaction may not be treated to be a void transaction as it would amount to double forfeiture of the original smuggler's property. It was lastly contended that in any case looking to the equities of the case and as the purchaser was a bona fide purchaser for value without notice he may not be visited with the evil consequences of the transaction wherein only the vendor, Tahira Sultana, was at fault and consequently on an analogy of section 9 of the SAFEMA this court may impose appropriate fine in lieu of forfeiture. Learned senior counsel for the respondents, Shri K. N. Shukla, on the one hand, supported the decision of the High Court. In view of the aforesaid contentions of learned senior counsel Shri Nariman, the following points arise for determination : 1. Whether the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by section 2, sub-section (2)(e). Accordingly, the purchaser Tayab Ali cannot be covered by section 2(2)(e) of the SAFEMA. However, the difficulty in his case arises independently of the provisions of section 2, sub-section (2)(e), as we will presently show. The property in question at the relevant time stood in the name of the purchaser's vendor Tahira Sultana. As she was the relative of the COFEPOSA detenu, her husband, the competent authority issued a notice to her under section 6(1) of the SAFEMA in connection with Dharam Jyoti Building flat, the disputed property herein. After hearing her, the competent authority passed an order under section 7 of the SAFEMA forfeiting the said property on October 12, 1977. It is this order which was challenged by her in the Bombay High Court. She had undertaken not to alienate the said property and still in flagrant breach thereof she sold the property in 1981 to the purchaser Tayab Ali. Apart from the fact that the said transaction had exposed the purchaser's vendor Tahira Sultana to contempt proceedings and she was punished, the question survives whether the purchaser Tayab Ali could derive any benefit out of the said tainted transaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have been made and it is not the case of the purchaser that any such enquiry was made by him at the relevant time when he entered into the said transaction pending the writ petition in the Bombay High Court. Thus, on the broad probabilities of the case, it must be held that the purchaser willingly and with open eyes played with fire and purchased litigation and it is too tall a claim on his part to submit that he was a bona fide purchaser for value without notice. Such stand does not bear scrutiny on the touchstone of probabilities. But even that apart once the writ petition filed by Tahira Sultana challenging the forfeiture order of October 12, 1977, got dismissed by the Bombay High Court and once that order became final the original order of forfeiture of this property dated October 12, 1977, operated in full swing and the result was that as per section 7, sub-section (3) of the SAFEMA the said property stood forfeited to the Central Government free from all encumbrances. Therefore, it must be held that by October 12, 1977, the property in dispute had ceased to belong to the purchaser's vendor Tahira Sultana and had vested in the Central Government. Consequently, when she purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r came to be confirmed in the subsequent Writ Petition No. 1527 of 1995 on August 21, 1995, the transaction of transfer in favour of Tayab Ali would be said to have been effected after the notice under section 6, issued to Tahira Sultana, and before the order of forfeiture ultimately got confirmed by the High Court and by this court and which had back effect of confirming the same from 1977. It must, therefore, be held that the transaction of purchase by the appellants' predecessor Tayab Ali was also hit by section 11 of the SAFEMA. Consequently, in 1981, when the purchaser purchased this property from Tahira Sultana, she had no interest in the said flat which she could convey to the appellants' predecessor. In substance, it amounted to selling of the Central Government's property by a total stranger in favour of the purchaser. No title, therefore, in the said property passed to the appellants' predecessor. The appellants' predecessor, therefore, had no legal defence against the claim of the authorities in calling upon the appellants as heirs of the original purchaser to vacate and hand over the possession of the property to the Central Government as full owner thereof. Both the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier order of October 12, 1977, was passed the said disputed property clearly reflected the utilisation of tainted money of Rs. 88,562. If subsequent dealing with the said property is found to be unauthorised and inoperative in law and if such subsequent transaction qua the said property remains a still-born one no life can be infused in it on account of the subsequent forfeiture of some other property of the original vendor when a subsequent forfeiture has stood on its own and has become final. The third point for determination, therefore, also is held against the appellants and in favour of the respondents. Point No. 4 : So far as this contention is concerned section 9 of the SAFEMA on its express language cannot apply. It lays down as under : "9. Fine in lieu of forfeiture.---(1) Where the competent authority makes a declaration that any property stands forfeited to the Central Government under section 7 and it is a case where the source of only a part, being less than one-half, of the income, earnings or assets with which such property was acquired has not been proved to the satisfaction of the competent authority, it shall make an order giving an option to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orfeiture of this very property had already taken place on October 12, 1977, and which order got ultimately confirmed by the Bombay High Court. Therefore, it is too late in the day for the appellants to contend that the clock should be put back and the October 12, 1977, order may be converted into fine in lieu of forfeiture especially when Tahira Sultana against whom that order has operated, has finally lost in her challenge to the said order. The fourth point for determination, therefore, has also to be rejected and stands decided against the appellants. As a result of the aforesaid findings of ours on all these points, the inevitable result is that the appeal fails and is dismissed. Interim order of stay granted pending the appeal will stand vacated. On the facts and circumstances of the case, there will be no order as to costs. ORDER After pronouncement of the judgment some reasonable time to vacate the premises was asked for by learned counsel for the appellants. In the facts and circumstances of the case, we deem it fit to grant time up to May 31, 1998, to vacate the premises and to hand over the possession to the authorities. The said time shall be granted on the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
