M. Ayishath Munawara v. Union of India and Others — 1995 DIGILAW 137 (MAD)

Judgment :- K.A. SWAMI, C. J. In this petition under article 226 of the Constitution, the petitioner has sought for quashing the order dated March 10, 1977, bearing No. OC/MDS/96/76 passed by the third respondent and also the order dated July 13, 1978, bearing No. F.P.A. 15/1977-78 passed by the second respondent The petitioner is the daughter of the person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, therefore, in respect of the properties held by her, a proceeding was started under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "the Act"). Notice was issued to her to explain the lawful sources by which the properties in question were acquired. Before the competent authority, the petitioner offered the explanation which was offered before the income-tax authorities. She was specifically asked to let in evidence for the following items. (1) Proof to prove that the national defence remittance was a legally acquired asset with particulars regarding the name and address of the remitters, the source of funds available for remittance outside India, the relationship between the lady and remitter and the reasons for the remittance, etc.; (2) Proof, if any, available for the gift allegedly received at the time of puberty celebration and how the money was kept; (3) Proof regarding the acquisition of the site where the residence at Killakarai was constructed; (4) Sources of the funds advanced for film purchase and sale; (5) Source of acquisition of property No. 45, Bunder Street, Madras, by her brother; and (6) Sources for acquisition of jewellery. The case was posted for furnishing the details mentioned above. As no evidence was adduced to prove the aforesaid items, the competent authority forfeited all those items free from all encumbrances and directed that the same should be surrendered or delivered possession to the authorities mentioned in the order passed under section 19(1) of the ActAggrieved by the aforesaid order, the petitioner preferred an appeal before the Appellate Tribunal for Forfeited Property in F.P.A. 15/1977-78. Before the Tribunal, an affidavit of the person who had remitted the sum of Rs. Before the Tribunal, an affidavit of the person who had remitted the sum of Rs. 30, 000 to the petitioner was filed, but the Tribunal refused to take the affidavit on file on the ground that there was no satisfactory explanation offered as to why the same could not be filed before the competent authority, that the name of the remitter was not disclosed before the competent authority, that the affidavit itself was not sufficient to prove that the sum of Rs. 30, 000 came from legitimate sources, that in the event of taking the affidavit on file, further evidence was required to be adduced to show the relationship of Meeralabbai with the petitioner, the source of funds out of which the remittance was made and the reasons for which the remittance was made. Therefore, the Tribunal rejected the affidavit. It is contended by Shri Ramachandran, learned counsel appearing for the petitioner, that no doubt, a burden is cast upon the petitioner to prove that the property has been acquired from lawful source. It is also true that the petitioner could not produce evidence before the competent authority, but before the Tribunal, she made sincere efforts to produce the evidence, but she was not permitted to do so. On the contrary, it is contended by learned Additional Central Government Standing Counsel for the Department that under rule 15 of the Smugglers and Foreign Exchange Manipulators (Appellate Tribunal for Forfeited Property) Rules, 1977 (hereinafter called "the Rules"), the petitioner has no right to adduce additional evidence before the appellate authority, therefore, the Tribunal was justified in refusing to permit the petitioner to adduce additional evidence. It is further submitted that as long as all the material particulars are not disclosed even in the affidavit, the mere filing of an affidavit of a person purported to have remitted the amount to the petitioner, would not be sufficient to permit the petitioner to adduce additional evidence. It is also contended that as far as the Tribunal is concerned, in rule 15 of the Rules, it is only when the Tribunal is satisfied that additional evidence is required, it can permit the petitioner to do soHaving regard to these rival contentions, the point that arises for consideration is as to whether the petitioner ought to have been permitted to adduce additional evidence before the Tribunal. Section 8 of the Act states that the burden of proving that any property specified in the notice served under section 6 of the Act is not illegally acquired property, is on the person who is affected by the notice. Section 12 of the Act provides for constitution of the Appellate Tribunal and an appeal lies to it against the order of the competent authority. Sub-section (5) of section 12 of the Act empowers the Appellate Tribunal to make such further inquiry as it deems fit and confirm, modify or set aside the order appealed against. Sub-section (7) empowers the Tribunal to regulate its own proceedings. Section 15 of the Act confers powers of a civil court upon the Tribunal as well as upon the competent authority while trying a suit under the Code of Civil Procedure in respect of the following matters. "(a) summoning and enforcing the attendance of any person and examining him on oath ; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for examination of witnesses or documents; (f) any other matter which may be prescribed." Rule 15 of the Rules has to be read in this background, which reads thus "15. Production of additional evidence before the Tribunal.- Save as otherwise provided in these Rules, the parties to the appeal shall not be entitled to produce additional evidence, oral or documentary, before the Tribunal. Provided that if the Tribunal- (a) requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or(b) is satisfied that the competent authority has decided the case without giving reasonable opportunity to the appellant to adduce evidence on points specified by him or not specified by him. the Tribunal may allow such documents to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced or direct the competent authority to record such evidence and submit its report along with the records." No doubt, the petitioner is not given the right to adduce additional evidence, oral or documentary before the Tribunal, but the Tribunal is empowered to permit production of additional evidence, if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause. Clause (b) of rule 15 further provides that if the Tribunal is satisfied that the competent authority has decided the case without giving reasonable opportunity to the petitioner to adduce evidence on points specified by him or not specified by him, the Tribunal may allow such documents to be produced or witness to be examined or affidavit to be filed. In the instant case, the competent authority did afford an opportunity to the petitioner on the points specified by it, However, as already pointed out, the petitioner did not avail of that opportunity and did not adduce evidence. Before the Tribunal, an affidavit of the person who claimed to have remitted the amount of Rs. 30, 000 in question was filed. When the Tribunal has been conferred with the powers of a civil court, while deciding the appeal and as it is required to render justice, it ought to have considered whether the additional evidence tried to be adduced by the petitioner was required for the purpose of rendering justice in the case. The Tribunal did not consider the case in the light of the provisions contained in clause (a) of rule 15 of the Rules. This is a case in which for the purpose of rendering justice, evidence was required, therefore, the petitioner produced the affidavit of the person who had remitted the amount. The further particulars which were required to be proved as mentioned in the order of the Appellate Tribunal, were all matters for evidence as such evidence was required to be produced by the petitioner. Therefore, she should have been permitted to adduce evidence. The further particulars which were required to be proved as mentioned in the order of the Appellate Tribunal, were all matters for evidence as such evidence was required to be produced by the petitioner. Therefore, she should have been permitted to adduce evidence. Even after such permission if she had failed to adduce such evidence, it was open to the Tribunal to decide the appeal on the basis that necessary evidence was not adduced. Therefore, we are of the view that this is a case, in which the Tribunal has failed to consider the case under rule 15(a) of the Rules, which is attracted to the case on hand. We are conscious of the fact that this is a proceeding initiated under section 6 of the Act as a result of detention under the COFEPOSA Act, which can be initiated against the person who has suffered detention or the relation of such person as defined in clause (c) of section 2(2) of the Act or an associate of a person referred to in clause (a) or clause (b) of section 2(2) of the Act. Even in such cases also, our jurisprudence does not permit that the case should be decided without evidence when evidence is required for the purpose of rendering justice. It is this principle that is incorporated in clause (a) of rule 15 of the RulesFor the reasons stated above, the writ petition is allowed in part. The order dated July 13, 1978, passed by the second respondent in F.P.A. No. 15/1977-78 is quashed and the appeal is remitted to the second respondent with a direction to decide the same afresh in accordance with law and in the light of the observations made in this order, after affording an opportunity to the petitioner to produce evidence to prove the lawful source for the acquisition of properties in question, on receiving the affidavit. To avoid delay, the parties are directed to appear before the Tribunal on March 1, 1995. In the event, the petitioner fails to appear on March 1, 1995, the Appellate Tribunal is entitled to proceed in the matter in accordance with law. No order as to costs. The W.M.Ps. are disposed of.