Kasam HussaIn Thaim Vs. Competent Authority - Court Judgment

Excerpt:
1. the properties of the appellant who was detained under the provisions of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (cofeposa), were directed to be forfeited by the order of the competent authority, ahmedabad, dated february 20, 1996, holding that the said properties are illegally acquired properties.2. the only contention of learned counsel for the appellant in this appeal is that the principles of natural justice, namely, audi alterem partem were violated, inasmuch as the competent authority who gave the hearing to the appellant on june 30, 1995, did not pass the impugned order and the said order was passed by shri a. k. mehta who later took charge, by the order dated february 20, 1996. in short, the contention is that shri mehta who passed the impugned order did not give any personal hearing to the appellant.3. in support of this contention learned counsel for the appellant relied on the judgments in shree rama packaging v. union of india [1990] 2 glr 1239 and rao (i.j.), assistant collector of customs v.bibhuti bhushan bagh 4. the deputy director, appearing for the competent authority, did not dispute the fact that shri a. k. mehta did not give any hearing to the appellant and passed the impugned order, based on the records. he, however, contended that the question of violation of the principles of natural justice has to be seen with reference to the facts of each individual case. he submitted that the previous competent authority shri shah gave full hearing to the appellant on june 30, 1995, and that his successor, shri mehta, perused the records and gave a reasoned order and that there is no question of violation of the principles of natural justice. in support of his contention, he relied on the decision of the supreme court in chairman, board of mining examination and chief inspector of mines v. rantjee, air 1977 sc 965.5. it is one of the cardinal principles of natural justice that the authority who heard the party should pass the order. in other words, the authority who passes the order should have given a hearing before passing the order. the proceedings before the competent authority are quasi judicial in nature and the principles of natural justice are required to the followed.6. we are satisfied that the competent authority who passed the impugned order did not give hearing to the appellant and, thus, the principles of natural justice have been violated.7. therefore, we allow the appeal and set aside the impugned order and remand the matter to the competent authority to give a hearing to the appellant based on the record. no fresh evidence will be permitted. the appellant or his counsel shall appear before the competent authority on july 1, 1999, for argument based on the available record. the competent authority is directed to pass the order, based on the arguments and the record before the end of july.8. in exercise of the power conferred under rule 14 of the appellate tribunal for forfeited property (procedure) rules, 1989, we direct the appellant not to alienate, dispose of, part with possession or create any third part rights over the forfeited property, till the disposal of the proceedings before the competent authority after remand.

Judgment:
1. The properties of the appellant who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), were directed to be forfeited by the order of the Competent Authority, Ahmedabad, dated February 20, 1996, holding that the said properties are illegally acquired properties.

2. The only contention of learned counsel for the appellant in this appeal is that the principles of natural justice, namely, audi alterem partem were violated, inasmuch as the Competent Authority who gave the hearing to the appellant on June 30, 1995, did not pass the impugned order and the said order was passed by Shri A. K. Mehta who later took charge, by the order dated February 20, 1996. In short, the contention is that Shri Mehta who passed the impugned order did not give any personal hearing to the appellant.

3. In support of this contention learned counsel for the appellant relied on the judgments in Shree Rama Packaging v. Union of India [1990] 2 GLR 1239 and Rao (I.J.), Assistant Collector of Customs v.Bibhuti Bhushan Bagh 4. The Deputy Director, appearing for the Competent Authority, did not dispute the fact that Shri A. K. Mehta did not give any hearing to the appellant and passed the impugned order, based on the records. He, however, contended that the question of violation of the principles of natural justice has to be seen with reference to the facts of each individual case. He submitted that the previous Competent Authority Shri Shah gave full hearing to the appellant on June 30, 1995, and that his successor, Shri Mehta, perused the records and gave a reasoned order and that there is no question of violation of the principles of natural justice. In support of his contention, he relied on the decision of the Supreme Court in Chairman, Board of Mining Examination and Chief Inspector of Mines v. Rantjee, AIR 1977 SC 965.

5. It is one of the cardinal principles of natural justice that the authority who heard the party should pass the order. In other words, the authority who passes the order should have given a hearing before passing the order. The proceedings before the Competent Authority are quasi judicial in nature and the principles of natural justice are required to the followed.

6. We are satisfied that the Competent Authority who passed the impugned order did not give hearing to the appellant and, thus, the principles of natural justice have been violated.

7. Therefore, we allow the appeal and set aside the impugned order and remand the matter to the Competent Authority to give a hearing to the appellant based on the record. No fresh evidence will be permitted. The appellant or his counsel shall appear before the Competent Authority on July 1, 1999, for argument based on the available record. The Competent Authority is directed to pass the order, based on the arguments and the record before the end of July.

8. In exercise of the power conferred under rule 14 of the Appellate Tribunal for Forfeited Property (Procedure) Rules, 1989, we direct the appellant not to alienate, dispose of, part with possession or create any third part rights over the forfeited property, till the disposal of the proceedings before the Competent Authority after remand.