Does Service Of Forfeiture Order On Minor Constitute A Valid Service? SC To Consider 

A Supreme Court bench of Justice RK Agrawal and Justice AM Sapre shall consider whether service of forfeiture order on a minor constitutes a valid service and whether the power of rectification includes the power of review in context of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SAFEMA) of 1976.

The bench shall also determine whether sufficient service for the purpose of Section 22 of the Act is effected if the order for forfeiture under its Section 7 is served on the advocate or whether the advocate’s authority as an agent under the Vakalatnamah terminates upon such forfeiture.

The bench was, on Tuesday, hearing two SLPs arising out of a 2012 judgment of the Delhi High Court, preferred on behalf of Amina Bi Kaskar and Hasina Ibrahim Parkar, the (now deceased) mother and sister, respectively, of Dawood Ibrahim.

Senior counsel Rajiv Dhawan, appearing on behalf of the sister’s legal representatives, advanced, “In so far as the SAFEMA incorporates the concept of guilt of association, in extending its applicability to even relatives of smugglers, the provisions of the Act require a stricter interpretation...”

Background

The competent authority under the SAFEMA passed an order dated 14.07.1998 for forfeiture of several properties under Section 7 of the SAFEMA. The common appeal on behalf of the present petitioners before the Appellate Tribunal for Forfeited Properties was filed on 20.10.1998. The appeal was beyond the period of 45 days as stipulated under Section 12(4) of the Act from the passing of the order dated 14.07.1998 by the competent authority. The petitioners had admitted in their said appeal before the Tribunal that the order dated 14.07.1998 was served upon them on 29/30th July, 1998. The appeal was held to be barred by limitation and the application for condonation of delay was dismissed. In the meantime, an inspection of the records revealed that the order dated July 14, 1998 was served not on the minor daughter of Hasina Parkar.

Thereafter, both the petitioners filed an application for review of the said order dated 26.10.1998, whereby the condonation of delay application was rejected and the appeal was held to be barred by limitation. The said review application was disposed of by an order dated 10.02.1999 by holding that proper service had been effected and that there were no grounds for reviewing the order dated 26.10.1998.

Subsequently, the writ petitions and the letters patent appeals in the same behalf were also dismissed by the Delhi High Court in 2011 and 2012, respectively.

Dhawan, on Tuesday, relied upon the 1997 judgment of the Supreme Court in Yakub Abdul Razak Memon v. Competent Authority to submit, “The intention is to serve any notice or order under the 1976 Act on the concerned person or their agent by registered post...if the same cannot be accomplished then the service is to effected in accordance with the alternative in section 22(b) of the Act by affixing the notice or order at a conspicuous place in the property to which it relates”.

In respect of the concern regarding the distinction between ‘forfeiture’ and ‘license’ in so far as the natural justice principle of audi alteram partem is concerned, he cited the 1984 apex court judgment in Chingleput Bottlers v. Majestic Bottling Company.

In context of issue if the power of rectification under Section 20 of the Act of 1976 includes the power of review, the 1987 Supreme Court judgment in Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya was discussed.