P.S. Marthandam (deceased) and Others vs State of Tamil Nadu

Nainar Sundaram, J.—The petitioners impugn the order of forfeiture passed by the second respondent under S. 13(3) of the Criminal Law

Amendment Ordinance XXXVIII of 1944, hereinafter referred to as the Ordinance. The original petitioner who is no more, was convicted for

offences connected with obtaining excessive compensation in land acquisition proceedings. The offences were admittedly covered by the schedule

to the Ordinance. There was an interim attachment of the properties concerned in O.P. 1 of 1970 on the file of the second respondent. That order

of interim attachment was subsequently made absolute. The original petitioner did not prefer any appeal as against the order of attachment. There

was an appeal by the original petitioner against his conviction and that appeal was dismissed by this Court. Thereafter the present application for

forfeiture of the properties has been taken up by the first respondent and the second respondent by the impugned order has directed forfeiture, to

the extent of 51.3 of the excessive compensation obtained by means of the offences. Mr. V. S. Subramaniam, learned counsel for the petitioners

would first submit that there had been no evaluation of the properties stated to have been procured by the petitioner by means of the offences, as

contemplated under S.12 of the Ordinance. After his attention was drawn to paragraph 120 of the judgment of the second Additional Special

Judge, Madras, who rendered the first judgment wherein there is a specific evaluation as per S. 12 of the Ordinance, learned counsel for the

petitioners did not pursue this line of thinking, but, would contend that there was no confirmation of that finding by the appellate Court as

contemplated under S. 12(2) of the Ordinance, When I asked the learned counsel for the petitioners as to whether such a point has been

specifically taken in the affidavit filed in support of the writ petition, learned counsel for the petitioners would would only draw my attention to a

vague reference that there was no finding in the criminal appeal that there was such improper receipt of money. That is not the ground that is now

being specifically urged before me by the learned counsel for the petitioners and that too only in the course of his arguments. It would not be fair to

the other side to permit the petitioners to raise this point for the first time in the course of arguments by their learned counsel. If this is really a legal

lacuna, and if only it has been pointed out at the earliest stage, the other side would have hastened to have it rectified. Even otherwise, it could be

argued that when this Court dismissed the appeal, all the findings against the petitioners, including the one under S. 12(1) of the Ordinance stood

confirmed. There is no specific procedure provided even for a determination under S. 12(1) of the Ordinance. When the determination has been

made by the first court, and when that has not been modified by this Court in appeal, the determination must be held to have been confirmed and

there is sufficient compliance with S. 12(2) of the Ordinance. Hence, this contention stands eschewed.

Learned counsel for the petitioners would secondly contend that the first respondent fined a writ petition seeking to quash the very award

passed in the land acquisition proceedings and later withdrew the writ petition and this would militate against the prosecution of the proceedings

under the Ordinance. The process under the Ordinance is a separate and an independent one intended as a speedier method of realising the

property obtained by the commission of the offences and the filing of the writ petition and the subsequent withdrawal of the same by the first

respondent cannot be stated to have vitiated the prosecution of the proceedings under the Ordinance. Obviously, the very purpose of filing the writ

petition was to nullify the award obtained by the commission of offences, and thereafter to seek recovery. After the withdrawal of the writ petition,

a suit for recovery has, in fact, been filed. Thirdly, learned counsel for the petitioners would contend that the first respondent having filed the suit for

recovery of the amounts stated to have been obtained by the petitioners as excess compensation there could not be prosecution of two parallel

proceedings, one under the Ordinance and the other by way of suit and this would amount to harassment of the petitioners. The concerned

provisions of the Ordinance, as already noted, operate for a speedier method of realising the property obtained by the commission of offences, and

it is not possible to stifle the process under the Ordinance on the simple ground that the first respondent has also resorted to the process of a suit.

There is no rule of exclusion of the ordinary civil proceedings for recovery, expressed either in the Ordinance or in any other law on the ground that

the process under the Ordinance has been resorted to. The converse proposition has also no countenance in any law. The final outcome of the suit

is a contingency which cannot be predicted now and it may be open to the petitioners to urge in the proceedings in the suit that amounts, if any,

realised by adopting the process under the Ordinance should be taken note of and given credit to with regard to the claims projected in the suit.

But, I should not be understood to have expressed any opinion on this issue by the above observation, and as and when the petitioners choose to

urge this plea in the proceedings in the suit, it will certainly have the appropriate adjudication by the forum where the proceedings in the suit get

prosecuted. None of the points urged deserve acceptance. No other point was urged. This writ petition is dismissed. No costs.