Amenabai
Tayebaly & Ors Vs. Competent Authority Under Safema & Ors [1997] INSC
836 (19 November 1997)
S.B.
MAJMUDAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
THE
19TH DAY OF NOVEMBER, 1997 Present Hon'ble Mr. Justice S.B. Majmudar Hon'ble
Mr. Justice M. Jagannadha Rao R.F. Nariman, Sr. Adv., Mrs. M. Karanjawala, Adv.
with him for the appellants K.N. Shukla, Sr.Adv., T.C.Sharma, S.Rajappa, S.N.Terdol,
A.P. Mayee and A.M. Khanwilkar, Advs. with him for the Respondents
The
following Judgment of the Court was delivered:
S.B. Majmudar
J.
This
appeal by special leave seeks to challenge judgment and order rendered by a
Division Bench of the Bombay High Court in Writ Petition No.2841 of 1982. By
the impugned judgment the order of respondent - competent authority forfeiting
the property in question under the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976 (hereinafter referred to as 'SAFEMA') came
to be confirmed.
In
Order to appreciate the grievance of the appellants it is necessary to note a
few introductory facts.
Introductory
Facts.
One Talab
Haji Hussein Sumbhania was detained Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA') by the
Government of Gujarat by order dated 02nd April 1976. Before the said order of
detention, the second wife of said Talab Haji Hussein, Tahira Sultana,
purchased a flat being Flat No.25 in Dharam Jyoti Premises Cooperative Housing
Society, Bandra, Bombay in February 1979 for a consideration of Rs.
88,562/-.
On 15th February 1977 the competent authority issued a notice under Section
6(1) of SAFEMA to the said Tahira Sultana calling upon her to show cause why
the said flat purchased upon her to show cause why the said flat purchased in
her name should not be forfeited as illegally acquired property of the COFEPOSA
detenu, her husband, the aforesaid Talab Haji Hussein. After hearing said Tahira
Sultana the competent authority passed an order Section 7 of the SAFEMA on 12th
October 1977 holding that the said property was illegally acquired property
and, therefore, it stood forfeited to the Central Government free from all
encumbrances as laid down under Section 7(3) of SAFEMA.
Said Tahira
Sultana challenged the aforesaid order of forfeiture by filing a Misc. Petition
No.1680 of 1977 on the Original Side of the Bombay High court. In the writ
petition she challenged both the order of detention of her husband as well as
the order of forfeiture of the said property standing in her name. The said
writ petition was moved in December 1977. The High Court of her husband as well
as the order of forfeiture of the said property standing in her name. The said
writ petition was moved in December 1977. The High Court of Bombay admitted the
said writ petition of Tahira Sultana on 03rd March 1978 and stayed the order of
forfeiture of the said property on an undertaking by her that she would not
dispose of or alienate or encumber or part with the right, title and interest
in the said flat pending the final disposal of the writ petition.
Simultaneously
she moved the Appellate Tribunal under the SAFEMA challenging the order of
forfeiture of her property. The Appellate Authority dismissed her appeal and
confirmed the order of forfeiture by its order dated 25th July 1978. By amendment to her writ petition
she also challenged the latter order. In the meantime the writ petition filed
by her before the Bombay High Court remained pending. On 20th November 1980 COFEPOSA detenu Talab Haji Hussein
expired.
Now
comes the crucial date when the present appellants' predecessor came in
picture. By a Sale Deed dated 30th July 1981 Tahira Sultana sold the said flat
to Tayab Ali, predecessor-in-interest of the present appellants for a
consideration of Rs. 3,60,000/-. We will refer to Tayab Ali as the purchaser of
this flat. It is obvious that the said sale was in breach of the undertaking
given by the vendor Tahira Sultana to the Bombay High Court and it was pending
the disposal of the writ petition challenging the order forfeiting the very
same property as passed by the competent authority years back on 12th October
1977 and as confirmed by the Appellate Tribunal on 25th July 1978. It is the
case of the purchaser that he had purchased the said flat in good faith for
valuable consideration since he was not aware of the order of the competent
authority or his vendor Tahira Sultana's undertaking to the High Court. Said Tahira
Sultana out of the consideration money received by her from the purchaser in
the aforesaid transaction amounting to Rs.
3,60,000/-
is said to have purchased a flat a Shivasthan Co- operative Society, Bandra,
Bombay, for Rs. 1,86,000/-. The case of the appellants is that towards the said
purchase consideration Rs.1,60,000/- were utilised by the said Tahira Sultana
from the sale proceeds which she received from the purchaser of Dharam Jyoti
flat, namely, the appellants' predecessor-in-interest. The on 05th November
1982, according to the appellants, the purchaser for the first time got
information from the Society in whose building the flat was situated, about the
order of forfeiture of the said flat and the undertaking given by the
purchaser's vendor Tahira Sultana before the Bombay High Court. That resulted
in a Writ Petition No. 2841 of 1982 filed by the purchaser Tayab Ali on 13th December 1982 in the Bombay High Court.
the
said writ petition was admitted on 16th December 1982 by the High Court and interim
relief was granted to the purchaser. When it was brought to the notice of the
Bombay High Court that purchaser's vendor Tahira Sultana had committed breach
of the undertaking given by her in her pending writ petition against the
forfeiture order of the flat in Dharam Jyoti Building, the High Court initiated
contempt of court proceedings against the said Tahira Sultana and by an order
dated 21st February 1983 held her guilty of contempt and imposed punishment of
simple imprisonment for four weeks and a fine of Rs. 2,000/- on said Tahira
Sultana. She underwent the said sentence.
Tahira
Sultana on her part filed Writ Petition No.100 of 1984 on the Criminal Side of
Bombay High Court in 184 again challenging the detention order and order of
forfeiture of property, while the appellants' predecessor-in-interest Tayab
Ali, the purchaser of the flat in question, moved the High Court of Gujarat on
12th August 1985 challenging the detention order of the COFEPOSA detenu Talab Haji
Hussein which gave rise to the proceedings under SAFEMA as sell as
consequential order under SAFEMA since the order of detention was issued by the
State of Gujarat. The Division Bench of the High Court of Gujarat by its
judgment dated 17th July 1986 held that the order of forfeiture of property was
passed by the competent authority without hearing the purchaser of the property
and hence the proceedings were required to be decided afresh after giving an
opportunity of hearing to the said purchaser. Pending the remanded proceedings
the purchaser Tayab Ali expired on 24th December 1986 leaving present appellants as his
heirs and legal representatives. Pursuant to the order of the High Court of
Gujarat the competent authority functioning under SAFEMA by order dated 17th March 1987 after hearing the purchaser's
heirs, namely, the present appellants re-confirmed the order of forfeiture of
the flat purchased by their predecessor, under SAFEMA. Independent of these
proceedings the competent authority also passed an order on 18th June 1987
under Section 7(2) of SAFEMA, after hearing Tahira Sultana, forfeiting the
second flat purchased by her being Flat No.1, Ground Floor, shivasthan Co-operative
Housing Society Ltd., Bandra, Bombay. It was held by the competent authority in
the said proceedings that Flat No.1, Ground Floor, Shivasthan Co-operative
Housing Society Ltd., had been acquired by said Tahira Sultana partly out of
the sale proceeds of Flat No.25, Dharam Jyoti Building, Pali Hill, Bandra,
Bombay, which was held to be illegally acquired and was forfeited to the
central Government by an order passed on 12th October 1977. As a consequence of
this order of 18th June
1987 it was directed
by the competent authority under section 19(1) of SAFEMA that said Flat No.1, Shivasthan
Society, was illegally acquired by Tahira Sultana and directed her to deliver
possession thereof to the central Government authorities. Tahira Sultana filed
appeal against the said order in connection with forfeiture of Flat No.1, Shivasthan
Society, which was dismissed by the Appellate Tribunal on 02nd November 1987. Tahira Sultana unsuccessfully
challenged the said order in proceedings for setting aside the ex parte order
before the Appellate Tribunal. The said application was dismissed by the
Tribunal. She filed Writ Petition No. 1527 of 1995 before the Bombay High Court
challenging the order of Appellate Tribunal passed on 18th April 1995 dismissing her application for
setting aside the ex parte order of the Appellate Tribunal. Her writ petition
was dismissed by the Bombay High Court on 21st August 1995. The authorities took possession of
Flat No.1, Shivasthan Society, from Tahira Sultana on 13th September 1995. She filed Special Leave Petition
before this Court challenging the order of the Bombay High Court pertaining to
Flat No.1, Shivasthan Society, Bombay. It was
dismissed by this Court on 24th November 1995. Therefore the forfeiture of Flat No.1, Shivasthan Society, became
final upto this Court. The appellants, who were brought on record as heirs of
purchaser in the latter's Writ Petition No, 2841 of 1982, which challenged the
forfeiture of the said Flat No.25, Dharam Jyoti Building, and the direction to
them to hand over possession ultimately came to be dismissed by a Division
Bench of the High Court of Bombay by an order dated 29th June 1995 and that is
how the appellants are before us Tahira Sultana's Misc. Petition No.1680 of
1977 was withdrawn by her before the Bombay High Court with a view to
challenging the appellate order confirming the order of forfeiture. She
accordingly filed subsequent Writ Petition No.1527 of 1995 which was rejected
by the Bombay High Court on 21st August 1995.
The said decision was challenged before this Court in S.L.P. (C) No. 25358 of
1995 which was dismissed by this Court on 24th November 1995.
It is
in the background of the aforesaid facts that the main contentions canvassed in
support of this appeal have to be examined.
Learned
senior counsel, Shri R.F. Nariman, for the appellants firstly contended that
SAFEMA itself did not apply to the purchase made by the purchaser as he was not
one of the persons mentioned in Section 2(2) of SAFEMA especially Section
2(2)(e) thereof and, therefore, entire proceedings against him were null and
void. It was alternatively contended that in any view of the matter the
original purchaser Tayab Ali was a bona fide purchaser for value without notice
and he was, therefore, not responsible for the acts of commission on the part
of his vendor Tahira Sultana. That even if she might have committed breach of
the undertaking given to the High Court of Bombay for which she was adequately
punished the purchaser cannot be visited with any adverse consequences thereof It
was next contended that Section 11 of SAFEMA would not apply to the facts of
the present case as the appellants' predecessor-in-interest had not purchased
the flat in Dharam Jyoti Building between two terminal dates, namely, 15th
February 1977 when notice under Section 6(1) of SAFEMA was issued to Tahira
Sultana and 12th October 1977 when the order of the competent authority under
section 7 of SAFEMA was passed. On the other had he had purchased the property
on 30th July 1981.
Therefore
on the express language of section 11 of the SAFEMA the said transaction could
not be said to be null and void. It was next contended that even proceeding on
the basis that Dharam Jyoti Building flat was originally purchased by Tahira
Sultana for a consideration of Rs. 88,562/- by utilising the tainted money of
her husband, Talab Haji Hussein, who was a COFEPOSA detenu, once she sold the
said property to the purchaser by taking Rs. 3,60,000/- spent Rs.1,60,000/- for
purchasing Shivasthan Society flat, the tainted money which were converted into
flat in Dharam Jyoti were again re-converted into cash and were utilised for
purchasing another immovable property. Therefore, the tainted money could be
traced out to the said property in Shivasthan Society and could be said to have
ultimately resulted in purchase of Shivasthan Society property and which now is
likely to fetch Rs. 65 lac, as seen from the auction notice dated 24th July 1996. Hence the purchaser's transaction
may not be treated to be a void transaction as it wold amount to double
forfeiture of the original smuggler's property. It was lastly contended that in
any case looking to the equities of the case and as the purchaser was a bona
fide purchaser for value without notice he may not be visited with the evil
consequences of the transaction wherein only the vendor Tahira Sultana was at
fault and consequently on an analogy of Section 9 of the SAFEMA this Court may
impose appropriate fine in lieu of forfeiture.
Learned
senior counsel for the respondents, Shri K.N. Shukla, on the hand, supported
the decision of the High Court.
In
view of the aforesaid contentions of learned senior counsel Shri Nariman, the
following points arise for determination ;
1.
Whether the provisions of SAFEMA apply to the sale transaction entered into
between the widow of Talab Haji Hussein, COFEPOSA detenu and purchaser,
predecessor-in-interest of the appellants.
2.
Whether the purchaser was a bona fide purchaser for value without notice.
3.
Whether the forfeiture of purchaser's Flat in Dharam Jyoti Building by the
authorities can be treated as double forfeiture on the basis of the same
tainted money of the COFEPOSA convict only because the subsequent property
purchased by the purchaser's vendor in Shivasthan Co-operative Society has also
been forfeited to the Government under SAFEMA.
4.
Whether the transaction in favour of the purchaser could be cleared on
principles analogous to Section 9 of the SAFEMA by imposing fine in lieu of
forfeiture on the peculiar facts of this case.
We
shall deal with these points for consideration seriatim.
Point
Nos.1 and 2 It is true that the SAFEMA has been enacted to provide for the
forfeiture of illegally acquired properties of smugglers and foreign exchange
manipulators and for matters connected therewith or incidental thereto, It is
also true that Section 2 sub-section (1) of the SAFEMA lays down that 'the
provisions of this act shall apply only to the persons specified in sub-section
(2)'. When we turn to sub-section (2) of Section 2 we find list of persons
mentioned therein at clauses (a) to (e). In section 2 sub-section 2(a) and (b()
are mentioned persons who are themselves detenues under the Act. Clause (c)
refers to every person who is a relative of a person referred to in clause (a)
or clause (b); Clause (d) refers to every associate of a person referred to in
clause (a) or clause (b); while clause (e) refers to any holder of any property
which was at any time previously held by a person referred to in clause (a) or
clause (b) unless the present holder or, as the case may be, any one who held
such property after such person and before the present holder, is or was a
transferee in good faith for adequate consideration. It is obvious that
purchaser's vendor (2)(c) as she was the wife of the COFEPOSA detenu Talab Haji
Hussein. Property standing in her name, therefore, could be processed under the
provisions of the SAFEMA. It is true that a purchase from a relative of the
COFEPOSA detenu would not be covered by Section 2 sub- section (e). Accordingly
the purchaser Tayab Ali cannot be covered by Section 2(2)(e) of SAFEMA. However
difficulty in his case arises independently of the provisions of Section 2
sub-section (2)(e) as well will presently show. The property in question at the
relevant time stood in the name of purchaser's vendor Tahira Sultana. As she
was the relative of the COFEPOSA detenu, her husband, the competent authority
issued a notice to her under Section 6(1) of SAFEMA in connection with Dharam Jyoti Building flat, the dispute property herein.
After hearing her, the competent authority passed an order under Section 7 of
SAFEMA forfeiting the said property on 12th October 1977. Of is this order which was
challenged by her in the Bombay High Court. She had undertaken not to alienate
the said property and still in flagrant breach thereof she sold the property in
1981 to purchaser Tayab Ali. Apart from the fact that the said transaction had
exposed purchaser's vendor Tahira Sultana to contempt proceedings and she was
punished, the question survives whether the purchaser Tayab Ali could derive
any benefit out of the said tainted transaction. It is, of course, true that
pending the writ petition there was already a stay order of the High Court of
Bombay by which the order of forfeiture of the said property had remained
stayed. But it was not an absolute order. It was conditional on the purchaser's
vendor Tahira Sultana, the writ petitioner, not transferring or alienating the
said property pending the proceedings. The said injunction of the High Court
reflected by the undertaking of Tahira Sultana made the said property
inalienable pending the writ petition proceedings moved by purchaser's vendor
before the High Court. Under these circumstances even though Section 52 of the
Transfer of Property Act, strictly speaking, may not apply as the lis was not
registered in Bombay as informed to us, the prohibition against alienation of
this property, by way of undertaking of purchaser's own predecessor-in-title
before the High Court had its full sway and operation. Therefore, if ultimately
the writ petition was dismissed the transfer effected by the writ petitioner in
breach of the prohibition and the undertaking would not give any benefit to the
purchaser. It would be too much for him to contend that he was a bona fide
purchaser for value without notice. The High Court in the impugned judgment has
noted that the said plea does not appear to be probable. It is true, as pointed
out by learned senior counsel Shri Nariman for the appellants, that for coming
to this finding the High Court has wrongly assumed that the purchaser Tayab Ali
had immediately filed a writ petition after purchasing the property as he had
filed his writ petition only on 13th December 1982 when he had received
information on 05th November 1982 that the flat in question was already
forfeited by Government. That may be so, However, the ultimate finding of the
High Court in this connection cannot be faulted on the touchstone of
probabilities. Reason is obvious. The COFEPOSA detenu Talab Haji Hussein was a
smuggler. When the purchaser purchased the said flat standing in the name of
the wife of the said smuggler, in usual course of conduct the said purchaser
must have been put on enquiry as to how COFEPOSA detenu's wife Tahira Sultana
became the owner of this property and what had happened to this property in the
proceedings under SAFEMA and whether title of the said flat was clear or not.
No such enquiry seems to have been made and it is not the case of the purchaser
that any such enquiry was made by him at the relevant time when he entered into
the said transaction pending the writ petition in the Bombay High Court. Thus
on broad probabilities of the case it must be held that purchaser willingly and
with open eyes played with fire and purchased litigation and it is too tall a
claim on his part to submit that he was a bona fide purchaser for value without
notice. Such stand does into bear scrutiny on the touchstone of probabilities.
But even that apart once the writ petition filed by Tahira Sultana challenging
forfeiture order of 12th October 1977 got dismissed by the Bombay High Court
and once that order became final the original order of forfeiture of this
property dated 12th October 1977 operated in full swing and the result was that
as per Section 7 sub- section (3) of SAFEMA the said property stood forfeited
to the Central Government free from all encumbrances.
Therefore,
it must be held that by 12th
October 1977 the
property in dispute had ceased to belong to purchaser's vendor Tahira Sultana
and had vested in the Central Government. Consequently when she purported to
sell this property on 30th July 1981 to the purchaser Tayab Ali she can be said
to have sold the property which had already ceased to belong to her and she
could not pass any valid title in favour of Tayab Ali in connection with the
said property which no longer belonged to her since 1977. It is, of course,
true that when she sold the said property the order of forfeiture had been
stayed by the High Court but, as seen earlier, it was a limited stay subject to
the condition of inalienability of the property by Tahira Sultana and breach of
such undertaking, which was a substitute for an injunction, would make that
transaction voidable and its efficacy had to be seen in the light of the final
result of the writ petition and once the final result was against Tahira
Sultana, whatever she did in the meantime became an exercise in futility. In
this connection we may usefully refer to section 11 of SAFEMA which reads as
under:
"11.
Certain transfers to be null and voild.-Where after the issue of a notice under
section 6 or under section 10, any property referred to in the said notice is
transferred by any mode whatsoever such transfer shall, for the purposes of the
proceedings under this Act, be ignored and if such property is subsequently
forfeited to the central Government under Section 7, then the transfer of such
property shall be deemed to be null and avoid." It is no doubt true that
on the express language of the said Section transfer of any property pending
the proceedings under Section 6 or 10 of the said act and prior to the order of
forfeiture shall be treated to be null and void. The purchaser transaction is
after the order of forfeiture of the said property, Still the consequence of
the said transaction being null and void could not be avoided by the purchaser
on the plea that this transaction was subsequent to the original order of
forfeiture, The original order of forfeiture was stayed at time of the
purchase. It got confirmed by the Bombay High Court ultimately when the Misc.
Petition No. 1680 of 1977 moved by Tahira Sultana was disposed of and the
subsequent Writ Petition No. 1527 of 1995 was dismissed by the High Court and
the S.L.P was filed by her in this Court was also dismissed. We many also note
that as the Misc. Petition No.1680 of 1977 was withdrawn on 19th June 1995 and
ultimately the forfeiture order came to be confirmed in the subsequent Writ
Petition No.1527 of 1995 on 21st August 1995, the transaction of transfer in favour
of Tayab Ali would be said to have been effected after the notice under section
6, issued to Tahira Sultana, and before the order of forfeiture ultimately got
confirmed by the High Court and by this Court and which had back affect of
confirming the same from 1977. It must, therefore, be held that the transaction
of purchase by the appellants' predecessor Tayab Ali was also hit by Section 11
of SAFEMA. Consequently in 1981 when the purchaser purchased this property from
Tahira Sultana she had no interest in the said flat which she could convey to
the appellants' predecessor. In substance it amounted to selling of Central
Government's property by a total stranger in favour of the purchaser. No title,
therefore, in the said property passed to the appellants' predecessor.
Appellants'
predecessor, therefore, had no legal defence against the claim of the
authorities in calling upon the appellants as heirs of the original purchaser
to vacate and hand over the possession of the property to the Central
Government as full owner thereof. Both the points for determination, therefore,
are answered against the appellants and in favour of the respondents.
Point
No.3 So far as this point is concerned we fail to appreciate how it is a case
of double forfeiture of the property purchased from the very same tainted
money. It is easy to visualise that tainted money earned by smuggler who is
convicted under COFEPOSA may result in purchasing number of properties. It
cannot, therefore, be said that these properties when confiscated after
following due procedure of SAFEMA would amount to multiple forfeiture. So far
as the facts of the present case are concerned it has to be kept in view that
for Rs. 88,562/- the original vendor Tahira Sultana purchased the disputed flat
in February 1975. She sold this very flat to the purchaser for Rs. 3,60,000/-.
Therefore,
money earned out of the said consideration Rs.
88,562/-
remained tainted money. Utilising a part of this money she purchased Shivasthan
Society flat for Rs. 1, 86,000/- out of which it is said that Rs. 1,60,000/-
were utilised from the sale proceeds of Dharam Jyoti Building flat. To this
original tainted money of Rs. 988,562/-, therefore, she must have added some
more money for purchasing Shivasthan Society flat. Even assuming that for the
purchase of the said flat she utilised Rs. 1,60,000/- out of Rs. 3,60,000/-
obtained by her from the purchaser as consideration for the sale of the Dharam Jyoti
Building flat to him it cannot be said that the original forfeiture of Dharam Jyoti
Building flat on 12th October 1977 was in any way affected by the subsequent
forfeiture of another immovable property purchased by the widow of original
COFEPOSA smuggler when she purchased the second flat. The said transaction was
quite independent of the earlier transaction which had already resulted in
forfeiture of the disputed property. It is not as if that Dharam Jyoti Building flat is being forfeited twice, consequently
the forfeiture of the Dharam Jyoti flat on 12th October 1977 by the competent authority must be
treated to be quite an independent transaction as compared to the latter order
of forfeiture of Shivasthan Flat on 18th June 1987. The latter order of forfeiture of
entirely different immovable property cannot retrospectively invalidate the
earlier order of forfeiture of 12th October 1977
pertaining to Dharam Jyoti Building flat. At the time when the earlier
order of 12th October 1977 was passed the said disputed property clearly
reflected the utilisation of tainted money of Rs. 88,562/-.
If
subsequent dealing with the said property is found to be unauthorised and
inoperative in law and if such subsequent transaction qua the said property
remains a still-born one no life can be infused in it on account of the
subsequent forfeiture of some other property of the original vendor when a
subsequent forfeiture has stood on its own and has become final. The third
point for determination, therefore, also is held against the appellants and in favour
of the respondents.
Point
No.4 So far as this contention is concerned Section 9 of SAFEMA on its express
language cannot apply. It lays down as under:
"9.
Fine in lieu of forfeiture. - (1) Where the competent authority makes a
declaration that any property stands forfeited to the central Government under
section 7 and it is a case where the source of only a part, being less than
one-half, of the income, earnings of assets with which such property was
acquired has not been proved to the satisfaction of the competent authority it
shall make an order giving an option to the person affected to pay, in lieu of
forfeiture, a fine equal to one and one-fifth times the value of such part.
Explanation-
For the purposes of this sub-section, the value of any part of income, earnings
or assets, with which any property has been acquired, shall be.-
(a) in
the case of any part of income of earnings, the amounts of such part of income
earnings;
(b) In
the case of any part of assets, the proportionate part of the full value of the
consideration for the acquisition of such assets." This is not a case in
which the purchase of Flat No.25, Dharam Jyoti Building, Bandra, Bombay, by Tahira
Sultana in February 1975 could be said to be a result of only a part utilisation
of the tainted money and any part of the said sale consideration of Rs.88,562/-
could be said to have come out of a source which was not tainted. Such is not a
case of anyone, Shri Nariman, learned senior counsel for the appellants, also
therefore, rightly contended that he only draws an analogy from Section 9 and
submits in the peculiar facts of this case that the appellants may not be
disturbed after so many years especially when from the other forfeited property
the central Government is likely to get Rs., 65 lacs as seen from the auction
notice and that appropriate fine may be imposed on the appellants in lieu of
forfeiture.
It is
difficult to agree. The appellants' predecessor, purchaser Tayab Ali played
with fire. He purchased the property despite there being an injunction and an
undertaking by his vendor Tahira Sultana in the pending proceedings in the writ
petition. His transaction, therefore, was liable to be voided in the light of
the final result of the writ petition which confirmed the order of forfeiture
of this very property purchased by him. Even that apart, as a result of the
dismissal of the writ petition of Tayab Ali's vendor by the Bombay High Court
the purchased property stood forfeited to the Government prior to the date of
purchase by the purchaser as the order of forfeiture, as seen above, operated
from 1977 once the stay granted by the Bombay High Court stood lifted on the
final dismissal of the writ petition of writ petitioner Tahira Sultana,
Therefore, the transaction of purchase by Tayab Ali was an exercise in
futility. Such a still-born transaction cannot be resurrected by passing an
order of fine in lieu of forfeiture. The forfeiture of this very property had
already taken place on 12th October 1977 and which order got ultimately
confirmed by the Bombay High Court. Therefore, it is too late in the day for
the appellants to contend that the clock should be put back and the 12th
October 1977 order may be converted into fine in lieu of forfeiture especially
when Tahira Sultana against whom that order has operated, has finally lost in
her challenge to the said order. The fourth point for determination, therefore,
has also to be rejected and stands decided against the appellants.
As a
result of the aforesaid findings of ours on all these points the inevitable
result is that the appeal fails and is dismissed. Interim order of stay granted
pending the appeal will stand vacated. On the facts and circumstances of the
case there will be no order as to costs.
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