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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

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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.

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   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

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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

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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

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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.