9911796707
TMI Blog1997 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... gling Activities Act, 1974 (hereinafter referred to as the "COFEPOSA"), by the Government of Gujarat by order dated April 2, 1976. Before the said order of detention, the second wife of the said Talab Haji Hussein, Tahira Sultana, purchased a flat being Flat No. 25 in Dharam Jyoti Premises Co-operative Housing Society, Bandra, Bombay, in February, 1975, for a consideration of Rs. 88,562. On February 15, 1977, the competent authority issued a notice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dharam Jyoti flat, namely, the appellants' predecessor-in-interest. That on November 5, 1982, according to the appellants, the purchaser for the first time got information from the society in whose building the flat was situated, about the order of forfeiture of the said flat and the undertaking given by the purchaser's vendor, Tahira Sultana, before the Bombay High Court. That resulted in Writ Petition No. 2841 of 1982 filed by the purchaser Tayab 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against the said order in connection with forfeiture of Flat No. 1, Shivasthan Society, which was dismissed by the Appellate Tribunal on November 2, 1987. Tahira Sultana unsuccessfully challenged the said order in proceedings for setting aside the ex parte order before the Appellate Tribunal. The said application was dismissed by the Tribunal. She filed Writ Petition No. 1527 of 1995 before the Bombay High Court challenging the order of 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 cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis that Dharam Jyoti Building flat was originally purchased by Tahira Sultana for a consideration of Rs. 88,562 by utilising the tainted money of her husband, Talab Haji Hussein, who was a COFEPOSA detenu, once she sold the said property to the purchaser by taking Rs. 3,60,000 from him and once out of the said consideration she spent Rs. 1,60,000 for purchasing Shivasthan Society flat, the tainted money which was converted into flat in Dharam 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present holder, is or was a transferee in good faith for adequate consideration. It is obvious that the purchaser's vendor, Tahira Sultana, was covered by section 2, sub-section (2)(c) as she was the wife of the COFEPOSA detenu Talab Haji Hussein. The property standing in her name, therefore, could be processed under the provisions of the SAFEMA. It is true that a purchase from a relative of the COFEPOSA detenu would not be covered 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssein was a smuggler. When the purchaser purchased the said flat standing in the name of the wife of the said smuggler, in the usual course of conduct the said purchaser must have been put on enquiry as to how the COFEPOSA detenu's wife Tahira Sultana became the owner of this property and what had happened to this property in the proceedings under the SAFEMA and whether title of the said flat was clear or not. No such enquiry seems to 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 forfeit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchase. It got confirmed by the Bombay High Court ultimately when the Miscellaneous Petition No. 1680 of 1977 moved by Tahira Sultana was disposed of and the subsequent Writ Petition No. 1527 of 1995 was dismissed by the High Court and the S. L. P. filed by her in this court was also dismissed. We may also note that as the Miscellaneous Petition No. 1680 of 1977 was withdrawn on June 19, 1995, and ultimately the forfeiture order 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 Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Dharam Jyoti flat on October 12, 1977, by the competent authority must be treated to be quite an independent transaction as compared to the latter order of forfeiture of the Shivasthan flat on June 18, 1987. The latter order of forfeiture of entirely different immovable property cannot retrospectively invalidate the earlier order of forfeiture of October 12, 1977, pertaining to the Dharam Jyoti Building flat. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of purchase by the purchaser as the order of forfeiture, as seen above, operated from 1977 once the stay granted by the Bombay High Court stood lifted on the final dismissal of the writ petition of the writ petitioner Tahira Sultana. Therefore, the transaction of purchase by Tayab Ali was an exercise in futility. Such a still-born transaction cannot be resurrected by passing an order of fine in lieu of forfeiture. The forfeiture 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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