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Criminal Appeal No. 34 of 2009

Decided On: 17.08.2017

Appellants: Domnic Alex Fernandes (D) through L.Rs. and Ors. Vs. Respondent: Union of India (UOI) and Ors.

Hon'ble Judges/Coram:
Adarsh Kumar Goel and U.U. Lalit


Adarsh Kumar Goel, J.

1. This appeal has been preferred against Order dated 11th July, 2007 of the High Court of Judicature at Bombay in Criminal Writ Petition No. 1088 of 1995.

2. The question for consideration is whether tenancy of a property, ownership of which is acquired by a person to whom the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) applies, will be treated as "illegally acquired property" within the meaning of Section 3(1)(c) of SAFEMA and can be subjected to forfeiture under the provisions thereof.

3. Facts giving rise to the issue may be briefly stated. Vide order dated 19th January, 1974 one Krishna Budha Gawde was detained Under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) by the Government of Maharashtra. As his detention was confirmed by the Advisory Board, he was covered by Section 2(b) of SAFEMA1 as the person to whom the said Act applied. Once it was so, the property illegally acquired by him (as defined in Section 3(1)(c)2 of the Act was liable to be forfeited. Accordingly, notice of forfeiture was issued Under Section 6 of the Act in respect of several properties including the property which is subject matter of present proceeding viz. T-40, Juhu Koliwada, H.B. Gawde Road (also known as Azad Road), I Santacruz (West), Mumbai-400 049. Vide order dated 29th August, 1977, the competent authority passed an order Under Section 7 of the Act holding the property in question to be liable to be forfeited. This order was confirmed by the Appellate Tribunal for Forfeited Property on 2nd April, 1997 in respect of the said property.

4. The Appellants herein filed a Writ Petition under Articles 226/227 of the Constitution seeking a direction that order of forfeiture passed against Krishna Budha Gawde could not operate against them as they are bona fide tenants. Prior to 1965, the original owner of the property sold the property to Krishna Budha Gawde. The new landlord-Gawde reconstructed the structure in the year 1972 and the Appellants were put in possession thereof and were paying rent to the new owner under the Bombay Rent Act. They were not aware of proceedings under SAFEMA and COFEPOSA against the landlord. They informed the competent authority about this. Since they apprehended coercive steps against them, they are entitled to be granted protection.

5. The writ petition was contested by submitting that since the properties of Krishna Budha Gawde stood forfeited and vested in the Central Government free from all encumbrances, the alleged