SANJEEV M. DESHMUK Vs. COMPETENT AUTHORITY

JUDGEMENT

(1.) The petitioners by filing this petition under Article 226 of the Constitution of India have taken exception to the order dated 31st January, 1996 passed by the Competent Authority, S.A.F.E.M.F.O.P.A. and N.D.P.S.A., New Delhi, under section 7(1) and section 7(3) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred it as "SAFEMA") and confirmation thereof by the Appellate Tribunal vide order dated 17th April, 1998.

(2.) One Shri Ashok Kumar Kapoor (hereinafter referred to as "the detenu") was detained vide order dated 28th August, 1978 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "C.O.F.E.P.O.S.A."), The detenu was the owner of a flat bearing No. 115-B in the building "Avinash" in the West Coast Co-operative Housing Society Ltd., Versova Road, Andheri, Bombay. The case of the petitioners is that by an agreement of sale dated 24th October, 1980 the detenu agreed to sell the said flat to the petitioner No. 1 for a total consideration of Rs. 60,000/-. The case of the petitioners is that on the date of execution of the agreement, the entire consideration was paid by the petitioner No. 1 to the detenu by a demand draft and on the very day the petitioner No. 1 was put in possession of the said flat No. 115-B (hereinafter referred to as 'the said flat'). The case of the petitioners is that the detenu was holding the said flat by virtue of being a member of the respondent No. 2 the West Coast Cooperative Housing Society Ltd. The detenu was holding five shares of the said society. The case of the petitioners is that on the basis of the said agreement executed by the detenu, the share certificates were transferred in favour of the petitioner No. 1. The case of the petitioners is that in the year 1994 the name of the petitioner No. 2 was incorporated in the share certificate along with the petitioner No. 1 as a co-member. The petitioner No. 2 is the wife of petitioner No. 1. Further case of the petitioners is that from the date of the said agreement, they are in possession of the said flat.

(3.) The detenu was served with a show cause notice dated 27th September; 1980 under section 6(1) of the SAFEMA. In the said notice the Competent Authority under the SAFEMA alleged that the detenu was holding the various properties described in the schedule to the said notice which were illegally acquired properties within the meaning of Clause (c) of sub-section (1) of section 3 of the SAFEMA. By the said notice the detenu was called upon to communicate within the time stipulated therein the source of his income, earnings or assets by means of which he has acquired the properties mentioned in the schedule. The detenu was also called upon to show cause why the said properties should not be declared to be illegally acquired properties and forfeited to the Central Government. The said flat was shown at Item No. 4 of the Schedule to the said notice. The case of the petitioners is that neither the petitioners nor the said society were aware of the said notice. It is the case of the petitioners that before entering into the said agreement, they made enquiries with the respondent No. 2-society about the title of the detenu to the said flat. It is stated by the petitioner that only after verifying the title of the detenu, the petitioner No. 1 entered into an agreement with the detenu.