Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (crl.) 501 of 2001
PETITIONER:
SHOBHA SURESH JUMANI
Vs.
RESPONDENT:
APPELLATE TRIBUNAL, FORFEITED PROPERTY & ANR.
DATE OF JUDGMENT: 04/05/2001
BENCH:
B.N. Agrawal, M.B. Shah & Ruma Pal
JUDGMENT:
Shah, J.
L...I...T.......T.......T.......T.......T.......T.......T..J
Short question requiring consideration in this appeal
iswhether wife whose husbands property is ordered to be
forfeited under the Smugglers And Foreign Exchange
Manipulators (Forfeiture of Property) Act, 1976 (hereinafter
referred to as the SAFEMA) is entitled to file an appeal
as person aggrieved under Section 12(4) of the Act?
Before dealing with the contentions, facts in nutshell
are that the Government of India issued detention order
dated 16.11.1995 under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974
(hereinafter referred to as the COFEPOSA) against one
Suresh Manoharlal Jumani, resident of Khar (West), Mumbai.
It appears that the order of detention was not implemented
as he was absconding. However, his detention order is
neither revoked nor quashed by any court of competent
jurisdiction. Thereafter, in exercise of powers conferred
under sub-section (1) of Section 6 of the SAFEMA, competent
authority issued notice dated 31.12.1996 to Suresh
Manoharlal Jumani and his wife Smt. Shobha Suresh Jumani to
show cause why the properties mentioned therein should not
be declared to be illegally acquired properties and
forfeited to the Central Government under the Act. The
competent authority divided the properties in two parts(1)
standing in the name of detenue i.e. properties mentioned
as Items No.1 to 6; and (2) properties mentioned as Items
No.7 and 8, which were standing in the name of appellant.
Notice to the appellant was issued as two properties were
standing in her name and as she was considered to be covered
by the provisions of Section 2(2)(c) of the SAFEMA. After
giving opportunity of hearing and of producing relevant
material evidence, competent authority by order dated
23.8.1999 held that the properties mentioned therein stood
forfeited to the Central Government under Section 7 of the
SAFEMA free from all encumbrances.
That order was challenged before the Appellate Tribunal
for the forfeited property at New Delhi by filing appeal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
under Section 12. By order dated 5.1.2000, with regard to
the forfeited property, i.e. Item Nos. 1 to 6 which were
in the name of detenue, the Tribunal directed that as the
detenue has not filed the appeal, the appeal was not
maintainable and the counsel should confine his arguments
only in respect of Items No.7 and 8. The learned counsel
sought time for making his submission and the matter was
adjourned to 4.2.2000. On 4.2.2000 the matter was heard qua
Items No.7 and 8 which were standing in the name of the
appellant and the appeal was dismissed on 8.2.2000.
Thereafter, appellant preferred Miscellaneous Petition No.
17/Bom of 2000 in FPA No. 40/BOM/99 for reviewing the order
on the ground that the appellant was having interest in
Items No.1 to 6 as she had vested right of maintenance from
her husband and his properties, and, therefore, she was
person aggrieved. That contention was negatived by the
Tribunal by order dated 22.2.2000. The High Court of Bombay
by order dated 6.2.2000 dismissed Crl. Writ Petition No.
653 of 2000 challenging the order passed by the Tribunal.
Hence, this appeal.
At the time of hearing of this matter, learned counsel
Mr. H.L. Tiku appearing on behalf of the appellant
submitted that the order passed by the Tribunal is illegal
and erroneous because any person aggrieved by an order of
the competent authority is entitled to file an appeal under
Section 12(4) of the SAFEMA and appellant being wife of the
detenue is an aggrieved person. He also submitted that the
appellant apart from being wife is also entitled to have
charge for maintenance from the properties which are
forfeited and, therefore, she is person aggrieved by the
order of the competent authority.
First we would reiterate that the words any aggrieved
person are found in several statutes. However, the meaning
of the expression aggrieved may vary according to the
context of the enactment in which it appears and all the
circumstances. In Sidebotham, Re, ex p Sidebotham [(1880)
14 Ch D 458, at page 465)], it was observed by James, L.J.:
But the words person aggrieved do not really mean a
man who is disappointed of a benefit which he might have
received if some other order had been made. A person
aggrieved must be a man who has suffered a legal grievance,
a man against whom a decision has been pronounced which has
wrongfully deprived him of something or wrongfully refused
him something, or wrongfully affected his title to
something.
The said passage was referred to and relied upon by this
Court in Thammanna v. K. Veera Reddy, [(1980) 4 SCC 62]
and Northern Plastics Ltd. v. Hindustan Photo Films Mfg.
Co. Ltd. and Others, [(1997) 4 SCC 452].
For deciding whether the appellant-wife could be said to
be person aggrieved in context of the scheme and statutory
provisions, we would refer to the objects and reasons of the
Act and also relevant provisions. The Preamble of the
SAFEMA reads thus: -
An Act to provide for the forfeiture of illegally
acquired properties of smugglers and foreign exchange
manipulators and for matters connected therewith or
incidental thereto.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
Whereas for the effective prevention of smuggling
activities and foreign exchange manipulations which are
having a deleterious effect on the national economy it is
necessary to deprive persons engaged in such activities and
manipulations of their ill-gotten gains;
And whereas such persons have been augmenting such gains
by violations of wealth-tax, income-tax or other laws or by
other means and have thereby been increasing their resources
for operating in a clandestine manner;
And whereas such persons have in many cases been holding
the properties acquired by them through such gains in the
names of their relatives, associates and confidants.
(Emphasis added)
Whole emphasis in the Preamble is on the forfeiture of
illegally acquired property by the smugglers and foreign
exchange manipulators as such ill-gotten gains have a
deleterious effect on the national economy. Further, even
though such persons may be holding illegally acquired
properties in the name of their relative, associates and
confidence, such properties are also to be forfeited.
Thereafter, Sub- section (1) of Section 2 provides that the
Act would apply only to persons specified in sub-section
(2). Sub-section (2) categorises such persons as
(a) person convicted under the Customs Act, Foreign
Exchange Regulations Act, as stated therein, or
(b) person against whom an order of detention has been
made under COFEPOSA, or
(c) person who is a relative of person referred to in
clause (a) or (b), or
(d) every associate of person referred to in clause (a)
or (b), or
(e) any holder of the property which was at any time
previously held by a person referred to in clause (a) or
clause (b) unless by purchase or in good faith for
consideration.
Explanations II and III provides for the meaning of the
words relative and associate respectively. Relative
includes spouse of the person. At this stage, we would
mention that there appears to be some mistake in omitting
the persons who are convicted for the offence under the
Prevention of Corruption Act, 1988 even though, illegally
acquired property is given exhaustive meaning under clause
(c) of Section 3(1) of the Act to mean any property acquired
by ‘such person wholly or partly out of or by means of any
income, earnings or assets derived or obtained from or
attributable to any activity prohibited by or under any law
for the time being in force relating to any matter of which
Parliament has power to make laws. The definition gives
further inclusive meaning with which we are not concerned at
present. Section 4 prohibits holding of illegally acquired
property by providing it shall not be lawful for any person
to whom this Act applies to hold any illegally acquired
property either by himself or through any other person on
his behalf. Sub- Section (2) provides that such property
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
shall be liable to be forfeited to the Central Government in
accordance with the provisions of the Act. The procedure is
prescribed under Sections 6 and 7 of the Act. Section 6
provides for issuance of show cause notice to ‘such person
who is holding illegally acquired properties. As stated
above such person would be the person who is covered by the
inclusive definition under Section 2(2)(c) of the Act. It
also provides for issuance of notice to the other person who
holds the property on behalf of ‘such person. Thereafter,
Section 7 makes it clear that the person affected is person
who holds such properties. As per sub-Section (1) of
Section 7, the competent authority is required to determine
whether the properties in question are illegally acquired
properties by the ‘person affected. Secondly, in a case
where a person affected holds any property specified in the
notice through any other person after giving opportunity of
hearing to such other person, the competent authority is
required to determine whether all or any of the properties
in question are illegally acquired properties. Sub-section
(1) of Section 7 reads as under: -
7. Forfeiture of property in certain cases. (1) The
competent authority may, after considering the explanation,
if any, to the show-cause notice issued under Section 6, and
the materials available before it and after giving to the
person affected (and in a case where the person affected
holds any property specified in the notice through any other
person, to such other person also) a reasonable opportunity
of being heard, by order, record a finding whether all or
any of the properties in question are illegally acquired
properties.
From this sub-section it is clear that for the purpose
of the Act, Section 7 categorises properties in two parts
(1) properties held by the person affected and (2) the
person affected holding the property through any other
person. Further Section 12 deals with procedure for filing
appeal before the Appellate Tribunal. Sub-section (4)
provides that any person aggrieved by an order of the
competent authority made under Section mentioned therein
may, within forty-five days from the date on which the order
is served on him, prefer an appeal to the appellate
Tribunal.
From the aforesaid scheme of the Act, ‘any person
aggrieved by an order of the competent authority would mean
person whose property is held to be illegally acquired under
the Act and which is to be forfeited or whose legal rights
qua the said property are adversely affected. According to
Blacks Law Dictionary, aggrieved party refers to a party
whose personal, pecuniary or property rights have been
adversely affected by another persons actions or by a
courts decree or judgment.Also termed party aggrieved;
person aggrieved. Therefore, a relative or associate, who
has no interest or right in such property can not be held to
be a person aggrieved. It is true that wife may be
aggrieved because her husbands properties are forfeited.
But that would not confer a right to file an appeal against
such order. There is no infringement of her legal right.
For the purposes of the Act husband and wife are different
entities. If the properties standing in the name of
relative or associate are forfeited on the ground that
smugglers or foreign exchange manipulators were holding the
said properties in their names or that such properties are
legally acquired, then to that extent, for challenging the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
said finding, the relative or associate can be held to be
person aggrieved by the order of the competent authority.
But, a relative or associate can not be considered to be
aggrieved if the properties belonging to the smuggler of
Foreign Exchange manipulator are forfeited under the Act.
Learned counsel for the appellant, however, submitted
that Hindu wife would be having interest in her husbands
property as she is having right of maintenance from her
husbands property. For this purpose, learned counsel
referred to Sections 18, 23 and 27 of the Hindu Adoption and
Maintenance Act, 1956. Section 18 only provides that Hindu
wife shall be entitled to be maintained by her husband
during her life time and if she is staying separately as
provided under sub-section (2), she is entitled to claim
maintenance from her husband. Section 23 deals with the
determination of the amount of maintenance. Section 27
provides that dependants claim for maintenance under the
Act shall not be a charge on the estate of the deceased or
any portion thereof, unless one has been created by the will
of the deceased, by a decree of court, by agreement between
the dependant and the owner of the estate or portion, or
otherwise. Section 28 further provides that where a
dependant has a right to receive maintenance out of the
estate and if such estate is transferred, the right to
receive maintenance may be enforced against the transferee,
if the transferee has notice of such right or if the
transferee is gratuitous. At this stage, we would make it
clear that the word ‘dependant is defined under Section 21
to mean relatives of the deceased, namely, (1) his or her
father; (2) his or her mother; (3) his widow, so long as
she does not remarry but does not include the wife whose
husband is surviving. In any case admittedly no charge for
maintenance was created in favour of the appellant on the
properties which are forfeited. She has not suffered any
legal grievance and has no legal peg for a justiciable claim
to hang on. Hence, there is no substance in the contention
raised by the learned counsel for the appellant.
Before parting with the judgment, we would observe that
it is difficult to comprehend the reason for not including a
person who is convicted under the Prevention of Corruption
Act, 1988 in the definition of Section 2(2)(c) of the Act.
It appears that for controlling the cancerous growth of
corruption apart from further deterrent provisions,
illegally acquired properties by means of corrupt practices
could be forfeited under the provisions by suitable
amendment in the Act. The question whether the time is ripe
for such amendment or not is to be decided by the
Legislature. However, we cannot turn our eyes to the fact
that because of mad race of becoming rich and acquiring
properties overnight or because of ostentatious or vulgar
show of wealth by few or because of change of environment in
the society by adoption of materialistic approach, cancerous
growth of corruption and illegal gains or profits has
affected the moral standards of the people and all forms of
governmental administration. It is to be mentioned that
under the Indian Penal Code, various punishments are
provided in Section 53 which include forfeiture of property
and Sections 61 and 62 provided sentence of forfeiture of
property. However, sections 61 and 62 were deleted by
Indian Penal Code (Amendment) Act, 1921. But considering
the situation prevailing in the society, it appears that the
said provisions are required to be re-introduced so as to
have deterrent effect on those who are bent upon to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
accumulate wealth at the cost of the society by misusing
their post or power. We hope that the Legislature would
consider this aspect appropriately.
In the result, the appeal is dismissed.