TMI Blog2022 (11) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... at is placed on the noticee by operation of Section 8 of the Act of 13 of 1976. The question that would arise in the case on hand is not one of burden of proof, but as to whether the Competent Authority has made out the jurisdictional fact, namely the link or the nexus between the acquisition of the property and the illegal income of the father of the first respondent/detenue. If we are to look at the notice under Section 6(1) of the Act of 13 of 1976, and the subsequent proceedings there is nothing in the said notice to connect the purchase of the property with the illegal income of the detenue. The notice proceeds on the footing that once the relationship between the noticee and the detenue is established the property in the hands of the noticee would automatically become illegally acquired property. No doubt the learned Additional Solicitor General would be right in his submission that the Writ Court ought not to have invoked Section 102 of the Evidence Act, to conclude that the burden is on the Competent Authority, but at the same time, he cannot succeed unless he is able to go one step further and establish the nexus or the link. A perusal of the notice issued under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Appellate Tribunal while allowing the Appeal in respect of the movable properties dismissed the Appeal in respect of the immovable properties. The first respondent carried the matter to this Court in WP No.2825 of 1978, which came to be disposed of on 01.02.1995, by the First Bench of this Court. While setting aside the order passed by the Appellate Tribunal, the Hon ble First Bench remitted the matter to the Appellate Authority with a direction to decide the same in accordance with law in the light of the observations made in the order, after affording an opportunity to the petitioner therein (first respondent herein) to produce evidence to prove the lawful source for the acquisition of properties in question, on receiving the affidavits. 4. Thereafter, the Appellate Tribunal received affidavits of at least three persons of whom one, namely Mr.S.Meeralabbai, had died even in the year 1992. The Appellate Tribunal upon a consideration of the evidence concluded that since the deponents of the affidavits, that were placed before it, could not be cross-examined, their affidavits cannot be taken on their face value. Therefore, the Appeal was dismissed. This order of dismissal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a possibility of there being a nexus between the illegal earnings and the acquisition of property. Arguing further, the learned Additional Solicitor General would submit that the Writ Court was not justified in concluding that the effect of Section 8 of the Act of 13 of 1976, is not an absolute burden. Decrying the reference to Section 102 of the Evidence Act in the given situation, the learned Additional Solicitor General would submit that Section 102 of the Evidence Act would apply only when the special enactment is silent about burden of proof. When the special enactment lays down a particular Rule of burden of proof and it is that which would prevail and not the Rule of evidence under the General Law, namely the Indian Evidence Act. 7. Contending contra, Mr.B.Satish Sundar, learned counsel appearing for the first respondent would submit that dehors Section 8 of the Act of 13 of 1976, the Competent Authority should show that there was some nexus or link between the acquisition and the illegal earnings of the delinquent, namely the father of the first respondent. In the absence of any material or even a semblance of reasoning in support of the conclusion that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which Parliament has no power to make laws; or (iv) any property acquired by such person, whether before or after commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in sub-clauses (i) to (iii) or the income or earnings from such property; and includes- (A) any property held by such person which would have been, in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration; (B) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings there from. 11. Clause (c) of Sub Section (2) of Section 2 of the Act of 13 of 1976, makes the Act applicable to a relative of the person who has been charged under the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2) Where the competent authority is satisfied that some of the properties referred to in the show-cause notice are illegally acquired properties but is not able to identify specifically such properties, then, it shall be lawful for the competent authority to specify the properties which, to the best of its judgment, are illegally acquired properties and record a finding accordingly under sub-section (1). (3) Where the competent authority records a finding under this section to the effect that any property is illegally acquired property, it shall declare that such property shall, subject to the provisions of this Act, stand forfeited to the Central Government free from all encumbrances. (4) Where any shares in a company stand forfeited to the Central Government under this Act, then, the company shall, notwithstanding anything contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution Bench in Attorney General for India and Others v. Amratlal Prajivandas and others, had concluded that notice to the detenue or the actual offender is not necessary in a proceeding under Section 6 of the Act of 13 of 1976, the Hon ble Supreme Court up held the view of the Calcutta and Kerala High Court, as opposed to the view of this Court to the effect that notice to the actual offender is mandatory in proceedings for forfeiture under Section 6 of the Act of 13 of 1976. The Hon ble Supreme Court, however, reiterated the requirement that the Competent Authority should establish the jurisdictional fact in order to invoke the provisions of Sections 6 and 7 of the Act of 13 of 1976. This Court in Aminath Fathima v. Competent Authority, Safena, held the same view after referring to the judgment in Aslam Mohammad Merchant v. Competent Authority and others, referred to supra. 15. Therefore, the question that would arise in the case on hand is not one of burden of proof, but as to whether the Competent Authority has made out the jurisdictional fact, namely the link or the nexus between the acquisition of the property and the illegal income of the father of the first re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 102 of the Evidence Act, to conclude that the burden is on the Competent Authority, but at the same time, he cannot succeed unless he is able to go one step further and establish the nexus or the link. A perusal of the notice issued under Section 6 and the order of the Competent Authority passed under Section 7 of the Act of 13 of 1976, would demonstrate that such a link or nexus is totally absent and no effort or endeavour has been made to establish such link or nexus. What could be forfeited under Sections 6 and 7 of the Act of 13 of 1976, is the illegally acquired property. Therefore, the jurisdictional fact or the fundamental requirement in order to invoke Sections 6 and 7, is the conclusion that the property is illegally acquired. In order to reach the said conclusion, the jurisdictional fact, namely the link or the nexus between the income of the detenue and the acquisition of the property should be established. If such link or nexus is absent, then the Competent Authority has no power or jurisdiction to direct forfeiture of the property. 19. As rightly pointed out by the Writ Court we also find that such link or nexus is totally absent rendering the invocation of power ..... 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