Judgment:
1. This appeal is filed by the appellants under section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, against the order of the Competent Authority, Mumbai, dated March 31, 1998, forfeiting the properties of the appellants under sections 7 and 19 of the SAFEMA.2. Hemant Dadubhai Barot was detained under the provisions of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act, 1974, by an order dated February 3, 1997. As the appellants are the relatives within the meaning of section 2(2)(b) of the SAFEMA, notices dated September 18, 1997, under section 6(1) of the Act were issued to them, to show cause why the properties mentioned in the Schedule should not be forfeited as illegally acquired properties. The appellants replied to the said notices stating that the properties are not illegally acquired. The proceedings before the Competent Authority underwent several adjournments at the request of the appellants.
Finally, on finding that the appellants were not producing any documentary evidence in support of their contention and failed to be present, either in person or through authorised representatives on March 31, 1998, to which date, the matter was posted, the Competent Authority passed the order under appeal. He held that the properties are acquired from unexplained sources of income traceable to the illegal activities of the detenu.
3. The appellants filed MP No. 62/Bom. of 1998 for stay of the order of forfeiture, pending disposal of the appeal. On November 24, 1998, when the said petition came up for hearing, it was pointed out by the Deputy Director appearing for the Competent Authority that the appeal is barred by limitation. The appellant was, therefore, directed to file an affidavit giving the requisite details, as we were of the view that the appeal is prima facie barred by limitation and the appeal cannot be entertained. Accordingly, the appellant filed an affidavit dated June 10, 1999. The Competent Authority made his submissions in writing and we heard counsel for the appellant as well as the Deputy Director.
4. The order under appeal was passed by the Competent Authority on March 31, 1998. The appeal was presented on July 28, 1998. The Deputy Director submitted that the order of the Competent Authority was sent to the appellants by registered post and they were returned as unclaimed and hence they were served by affixture on May 8, 1998, and May 10, 1998, at the addresses of the appellants. It was further stated that a corrigendum dated May 18, 1998, was issued, as there were errors in the description of the forfeited properties in the Schedule attached to the order dated March 31, 1998, and that the said corrigendum was also served on the appellants. It was, therefore, submitted that the appeal is barred by limitation.
5. It was submitted by learned counsel of the appellants that no attempt was made by the Competent Authority to serve the order on the appellants by tendering the same as required by section 22(a) of the SAFEMA and that the affixture of the notices was not made at the last known residence of the appellants as required by clause (b) of section 22, as the appellants have subsequently corresponded with the Competent Authority from a different address. The further contention is that the affixture of the orders was not proper as there was no valid panchanama drawn. It was lastly argued that the appellants were not given notices before the corrigendum was issued, as required by section 20.
6. It is seen from the notices issued under section 6(1) to the appellants that the appellants were served at No. 103/104, Vindhyachal, Neelkanth Valley, Ghatkoper (East), Mumbai, and No. 8, Kavad, Vajreshwari Road, P. O. Angaon, Bhiwandi, Dist. Thane. A perusal of the panchanamas dated May 8, 1998, and May 10, 1998, would show that the affixture of the orders were made at those addresses respectively.
Learned counsel for the appellant pointed out that a letter dated November 10, 1997, was addressed by Smt. Usha Hement Barot (appellant No. 1) showing her address as No. 8, Karodwada (Ghanti), P. O.Ronawada, Panchmahal, Gujarat, and that the Competent Authority had replied to her by a letter dated November 17, 1997, to the same address and that it was incumbent on the part of the Competent Authority to note the change of address and it was necessary to have affixed the order only at the new address.
7. The contentions of learned counsel has no force as there was no mention in the letter dated November 10, 1997, that the appellants have changed their address and that the original addresses to which the notices under section 6(1) were sent, should be changed. From the letter dated November 10, 1997, it is clear that the appellant moved to Mumbai after visiting her native place for admitting her father-in-law in a private clinic. It is not possible for the Competent Authority to note change of address from the letter dated November 10, 1997, as there was no specific request by the appellant to note the change of address. It is, therefore, to be held that the Competent Authority was justified in having the orders served by affixture at the addresses on which the appellants have permanent residence and where they were served with notices under section 6(1).
8. The contention that the order should have been first tendered before taking further steps like by sending by registered post or by affixture has no substance. Section 22 reads as under : "22. Service of notices and orders. - Any notice or order issued or made under this Act shall be served - (a) by tendering the notice or order or sending it by registered post to the person for whom it is intended or to his agent; (b) if the notice or order cannot be served in the manner provided in clause (a), by affixing it on a conspicuous place in the property in relation to which the notice or order is issued or made, or on some conspicuous part of the premises in which the person for whom it is intended is known to have last resided or carried on business or personally worked for gain." 9. Under clause (a) of section 22, it is open to the Competent Authority to either tender the order or to send it by registered post to the person for whom it is intended or to his agent. It is not necessary that the order should first be tendered and sent by registered post only thereafter, if it is not served by tendering.
10 The contention that the affixture of the order was not made on the premises in which the appellants last resided is also without substance. So far as the Competent Authority was concerned, the premises at which the appellants last resided was only at the address at which the notice under section 6(1) was served. Temporary residence at other places during the course of the proceedings will not alter the situation, unless the change of address is specifically informed to the Competent Authority. We, therefore, hold that the respondent had served the order under appeal as required by section 22.
11. The contention that the panchanamas are invalid as the panchas were not examined, is devoid of any merit. The Inspector, Shri P. L. Dev, called two witnesses, Shri Shailendra Santpal and Shri Pravin Kadam, and made the affixture on May 8, 1998. On May 10, 1998, Shri Ganpat R.Munje and Shri Walku Ganpat Gurav were called by the inspector and in their presence, the order was affixed at the premises of the appellants respectively and the panchas have affixed their signatures to the panchnamas, after they were read over to them in Hindi. We have no hesitation in holding that the affixture of the orders on May 8, 1998, and May 10, 1998, were properly done and the requirement of section 22 his been complied with.
12. The orders have been served on the appellants on May 8, 1998, and May 10, 1998, by affixture. The appeal ought to have been filed within 45 days as required by sub-section (4) of section 12, or within a further period of 15 days as per proviso to section 12(4), if the appellants are able to satisfy the Tribunal that they were prevented by sufficient cause for filing the appeal in time. The appeal was presented only on July 28, 1998, which is much beyond the period of limitation of 45 days or the extended period of 15 days, prescribed.
We, therefore, hold that the appeal is barred by limitation.
13. We next turn to the last submission of learned counsel that the corrigendum issued on May 18, 1998, is illegal, as no notice was issued to the appellants as required under the proviso to section 20. It was not shown to us by the Deputy Director that the corrigendum was made after issuing notices to the appellants. A perusal of the corrigendum clearly shows that the description of the properties were materially changed from their description originally mentioned in the order dated March 31, 1998. To quote an example, one of the properties mentioned in the order dated March 31, 1998 was House No. 72, Naroda, Ahmedabad, was to be read as Flat No. 57, Sarvmangal Society, Bapu Nagar, Ahmedabad, as per the corrigendum. Where such glaring rectifications were to be made, it was incumbent on the part of the Competent Authority to afford an opportunity to the appellants to show cause why such rectification should not be done. Section 20 reads as follows : "20. Rectification of mistakes. - With a view to rectifying any mistakes apparent from the record, the competent authority or the Appellate Tribunal, as the case may be, may amend any order made by it within a period of one year from the date of the order : Provided that if any such amendment is likely to affect any person prejudicially, it shall not be made without giving to such person a reasonable opportunity of being heard." 14. The proviso to section 20 is mandatory. No rectification under section 20 can be made without giving the party who will be affected by such an order, a reasonable opportunity of being heard. The corrigendum which was made in violation of the proviso to section 20, which is based on the principles of natural justice, cannot stand. We, therefore, set aside the corrigendum dated May 18, 1998, of the Competent Authority issued under section 20. It is open to the Competent Authority to take steps in accordance with law with regard to rectification of mistakes in the order dated March 31, 1998.
15. In exercise of the powers vested in us under rule 14 of the Appellate Tribunal for Forfeited Property (Procedure) Rules, 1986, we direct the appellants not to dispose, alienate or let into possession third parties, in respect of the properties mentioned in the corrigendum, which were directed to be read in the place of corresponding properties mentioned in the order dated March 31, 1998, for a period of 60 days from the date of receipt of this order.
16. In the result, the corrigendum dated May 18, 1998, stands set aside and with the above direction, the appeal is dismissed.