[1.0] Present Letters Patent Appeal under Clause 15 of the Letters Patent has been preferred by the appellant herein – original petitioners of Special Civil Application No.3716 of 1995 challenging the impugned judgment and order dated 27.02.1997 passed in Special Civil Application No.3716 of 1995 [which is reported in 1997(2) GLR 1595] by which the learned single Judge has dismissed the said Special Civil Application in which the appellants herein – original petitioners challenged the order of detention dated 11.06.1976 (Annexure ‘A’ to the main petition) passed by the State Government to detain the appellant No.1 herein – original petitioner No.1 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [hereinafter referred to as “COFEPOSA”] and also to quash and set aside the declaration dated 11.06.1976 issued under Section 12A of the COFEPOSA and also the notices issued under Section 6(1) of the Smugglers and Foreign Exchange Manipulators (For Forfeiture of Property) Act, 1976 [hereinafter referred to as “SAFEMA”] (Annexure ‘D collectively’ to the main petition). [2.0] Facts and the chronological events which led to the present Letters Patent Appeal in nutshell are as under:
[2.1] That the order of detention was passed against the appellant No.1 herein – original petitioner No.1 on 11.06.1976 under the COFEPOSA. Simultaneously, a declaration under Section 12A of the COFEPOSA was also issued on the same day declaring that it was necessary to detain the said detenu for dealing effectively with the emergency which was then proclaimed. It is required to be noted at this stage that at the time when the order of detention was passed against appellant No.1 herein under the COFEPOSA, there was already a subsisting emergency declared/proclaimed. That the emergency came to be lifted on 21.03.1977 and therefore, the order of detention dated 11.06.1976 came to be revoked by the Government and the aforesaid detenu – appellant No.1 was released from detention. At this stage it is also required to be noted that neither the detenu nor any of his relatives challenged the order of detention either during the subsistence of the emergency or during the continuation of the order of detention i.e. between 11.06.1976 to 21.03.1977. It appears that thereafter Special Civil Application No.1276 of 1977 came to be filed by the detenu challenging the earlier order of detention dated 11.06.1976 as well as vires of COFEPOSA and SAFEMA, as in the meantime, the proceedings under the SAFEMA were initiated by showcause notice dated 28.04.1977. The detenu and the appellants herein preferred Special Civil Application No.1276 of 1977 challenging the vires of COFEPOSA and SAFEMA as well as the order of detention dated 11.06.1976 and proceedings under SAFEMA. That the proceedings under the SAFEMA were stayed pending the said petition. It appears that along with the aforesaid Special Civil Application, there were number of other petitions preferred by other detenus / other persons against whom the proceedings under the SAFEMA were initiated. It appears that in the meantime, proceedings were pending before the Hon’ble Supreme Court challenging the vires of SAFEMA and COFEPOSA. That thereafter the Special Bench of 9 Judges of the Hon’ble Supreme Court by judgment and order reported in (1994)5 SCC 54 in the case of Attorney General For India and Others vs. Amratlal Prajivandas and Others disposed of all the petitions [which will be referred to and considered hereinafter] and a direction was given that the concerned Court and/or authority before whom the proceedings were pending under the SAFEMA shall proceed to dispose of the same in accordance with law and in light of the said judgment. The Court also expressed that proceedings to be concluded with all deliberate speed. That thereafter all the petitions which were pending came to be disposed of by the Division Bench of this Court by passing the following order.
“In view of the decision of the Hon’ble Supreme Court in the case of Attorney General For India and Others vs. Amratlal Prajivandas and Others reported in JT 1994(3) SC 583, this petition is dismissed.”
In some of the petitions inclusive of Special Civil Application No.1276 of 1977 preferred by the appellants herein – original petitioners, the learned advocate appearing for petitioners prayed for withdrawal of the said petitions and those petitions inclusive of the aforesaid Special Civil Application No.1276 of 1977 were dismissed as withdrawn and the following order was passed.
“The challenge to the Constitutional validity of SAFEMA and COFEPOSA no longer survive, in view of the decision of the Supreme Court in the case of Attorney General of India v. Amratlal Prajivandas & Ors. JT 1994(3) SC 583. Counsel for the petitioner, however, wishes to withdraw the writ petition as he wishes to file a fresh petition in the light of the aforesaid judgment, raising such contentions as may be open to the petitioner in accordance with law. Mr. Jayant Patel, Addl.
Central Government Standing Counsel for the respondent states that all questions had been answered by the Supreme Court and nothing survives. As the petitioner is wanting to withdraw this writ petition with a view to file a fresh petition, we express no opinion on any of the questions on merit. Permission to withdraw the petition is granted. Petition stands disposed of as withdrawn. Interim order stands vacated.”
That thereafter the petitioners of Special Civil Application No.1276 of 1977 (appellants herein) and other petitioners who withdrew the earlier petitions again preferred petitions being Special Civil Application No.3714 of 1995 and other allied matters challenging the earlier order of detention passed during emergency under the COFEPOSA as well as the proceedings instituted against them under the SAFEMA. So far as the appellants are concerned, they preferred Special Civil Application No.3716 of 1995. That at the time of hearing of the aforesaid Special Civil Applications, objection was raised by the learned Counsel appearing on behalf of the Central Government and the State Government that as earlier the respective petitioners withdrew the Special Civil Applications challenging the order of detention, subsequent petitions are not maintainable on the ground of res judicata. It was also submitted that in view of the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra), as the order of detention was not challenged earlier during the subsistence of detention, the same cannot be challenged subsequently at the time when the proceedings under the SAFEMA are initiated. That the learned single Judge by impugned common judgment and order dated 27.02.1997 dismissed all the petitions inclusive of Special Civil Application No.3716 of 1995 [which is impugned in the present Appeal] by holding that in view of the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra) as neither the detenu nor his relatives challenged the order of detention either during the subsistence of emergency on the grounds available during the emergency nor challenged the same during the existence of the order of detention, as held by the Hon’ble Supreme Court in the said decision, subsequently the legality and validity of the order of detention cannot be challenged when the proceedings under the SAFEMA are initiated. The learned single Judge negatived the contention/submission on behalf of the Central Government / State Government that in view of the withdrawal of the earlier Special Civil Application No.1276 of 1977, the petition is barred by res judicata.
[2.2] Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 27.02.1997 passed by the learned single Judge in Special Civil Application No.3714 of 1995, the petitioners of Special Civil Application No.3716 of 1995 have preferred the present Letters Patent Appeal under Clause 15 of the Letters Patent.
[2.3] It is also required to be noted at this stage that during the pendency of the present Letters Patent Appeal, the proceedings under the SAFEMA proceeded further and continued and at that stage the present appellants and other relatives filed a group of petitions being Special Civil Application No.11063 of 2001 challenging the proceedings under the SAFEMA as well as the order of detention dated 11.06.1976, in the year 2001 and the aforesaid Special Civil Application came to be withdrawn on 26.04.2002 with a liberty to approach the authority who issued a showcause notice and to raise all contentions including the preliminary point which were raised in the said petition and the aforesaid Special Civil Application came to be dismissed as withdrawn with above liberty. Not only that, thereafter one another Special Civil Application No.6678 of 2002 came to be filed by the present appellants praying for various reliefs inclusive of challenging the continuation of proceedings under the SAFEMA as well as the order of detention dated 11.06.1976. That the said Special Civil Application was filed in the month of July 2002. That the appellant No.1 herein and other brothers/relatives filed one another Special Civil Application No.6790 of 2002 in the month of July 2002 for the reliefs to declare that since the order of detention passed against appellant No.1 herein was revoked, SAFEMA is not applicable to any of the petitioners and also to quash and set aside the order of detention dated 11.06.1976 passed against the detenu – appellant No.1 herein Bipinchandra Choksi. That the aforesaid Special Civil Application No.6678 of 2002 came to be dismissed by the learned single Judge by order dated 18.08.2004 on the ground of alternative remedy available to them and also on the ground that the order of detention was challenged before this Court which was challenged in Special Civil Application No.3716 of 1995 and challenge to the order of detention of appellant No.1 was negatived and the present Letters Patent Appeal was pending, the learned single Judge dismissed the aforesaid Special Civil Application No.6678 of 2002. Even the learned single Judge dismissed the Special Civil Application No.6790 of 2002 and other petitions filed by the present appellant herein and other relatives by order dated 19.08.2004. In the meantime the proceedings by the competent authority under the SAFEMA came to be disposed of against which the appellants preferred filed before the Appellate Tribunal and the said Appeal came to be partly allowed and the matter was remanded to the competent authority for considering the issue afresh and thereafter the competent authority has passed the fresh order of forfeiture of the properties in the year 2009 against which the appellants have preferred the Appeal before the Appellate Tribunal and the same is pending. It appears that pursuant to the interim order passed by the Division Bench of this Court in the present Letters Patent Appeal, respondent Nos.1 and 2 herein are restrained from implementing the orders that may be passed by the competent authority pursuant to the notice issued under Section 6(1) of the SAFEMA and the petitioners are also directed to maintain statusquo as regards the disputed property and are also restrained from transferring and/or alienating the disputed property in any manner. That is how the order passed by the competent authority under the SAFEMA has not been implemented.
[3.0] Shri S.H. Sanjanwala, learned Senior Advocate has appeared on behalf of the appellants herein – original petitioners and Shri Hriday Buch, learned Additional Central Government Standing Counsel has appeared on behalf of the competent authority under the SAFEMA and Ms. Nisha Thakore, learned Assistant Government Pleader has appeared on behalf of the State.
[3.1] Shri Sanjanwala, learned Counsel appearing on behalf of the appellants has vehemently submitted that though the learned single Judge has specifically held that despite the withdrawal of Special Civil Application No.1276 of 1977, there is no bar to entertain the subsequent petition on the ground of res judicata, the learned single Judge has not decided the petition on merits challenging the order of detention dated 11.06.1976. It is submitted that the learned single Judge has materially erred in not entertaining the petition and/or not deciding the petition on merits challenging the order of detention dated 11.06.1976. It is submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellants herein – original petitioners that the learned single Judge has materially erred in relying upon the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra). It is submitted that as such the learned single Judge has misinterpreted the aforesaid decision of the Hon’ble Supreme Court. Referring to para 42 of the aforesaid petition, it is submitted that even in the said decision, the Hon’ble Supreme Court has specifically observed that even the order of detention can be challenged subsequently on the ground that the provision of Section 12A of COFEPOSA were not complied with or on other grounds as might have been available during the subsistence of the emergency.
[3.2] Shri Sanjanwala, learned Counsel appearing on behalf of the appellants has vehemently submitted that as in earlier proceedings / petitions, the order of detention was not considered on merits and/or no Court considered the legality and validity of the order of detention on merits and/or the order of detention was not held to be valid by any other Court, in a subsequent proceedings more particularly when the proceedings under the SAFEMA were initiated based upon the order of detention, in a subsequent proceedings the Court is required to consider the legality and validity of the order of detention on merits. In support of his above submissions, he has heavily relied upon the decision of the Hon’ble Supreme Court in the case of Competent Authority, Ahmedabad vs. Amritlal Chandmal Jain and Others reported in (1998)5 SCC 615 as well as in the case of Nutan J. Patel (Ms) vs.
S.V. Prasad and Another reported in (1996)2 SCC 315 as well as unreported decision of the Hon’ble Supreme Court in the case of Narendra Kumar vs. Union of India & Ors. rendered in Criminal Appeal No.1046 of 1997. He has also heavily relied upon the decision of the Hon’ble Supreme Court in the case of Karimaben K. Bagad vs. State of Gujarat and others reported in AIR 1998 Supreme Court 2938 which was preferred by the petitioner of Special Civil Application No.3436 of 1996 – Karimaben K. Bagad, which was also dismissed by the very learned single Judge by passing the impugned common judgment and order. Shri Sanjanwala, learned Counsel appearing on behalf of the appellants has also heavily relied upon the decision of the learned single Judge in the case of Ghelubhai R. Madam through heirs & L.Rs. vs. A.K. Mehta or his successor, Competent Authority and SAFEMA/NDPS, Mumbai & Ors. reported in 2004(2) GLR 1431. Relying upon the above decisions, it is submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the appellants that the learned single Judge ought to have considered the legality and validity of the order of detention dated 11.06.1976 on merits and ought to have considered the petition challenging the order of detention dated 11.06.1976 on merits on the grounds available to the petitioners, more particularly, nonfollowing the procedure as required under Section 12A of the COFEPOSA. It is submitted that in the present case, the learned single Judge while dismissing the Special Civil Application has not dealt with and/or considered the case on behalf of the petitioners on merits challenging the order of detention dated 11.06.1976. It is submitted that in the aforesaid decisions, the Hon’ble Supreme Court has specifically held that the order of detention even if it is challenged subsequently and as and when proceedings under the SAFEMA are initiated, which are based upon the order of detention, the same is required to be considered on merits and unless and until either earlier the order of detention has been considered on merits and/or the same is held to be valid by a competent court, it can be challenged at any time more particularly as and when proceedings under the SAFEMA are initiated and challenge to the order of detention is required to be considered by the Court on merits. It is submitted that in the present case the learned single Judge has not considered the legality and validity of the order of detention dated 11.06.1976 on merits and therefore, it is requested to allow the present Letters Patent Appeal and to quash and set aside the impugned judgment and order and remand the matter to the learned single Judge to decide the legality and validity of the order of detention on merits.
[3.3] Shri Sanjanwala, learned Counsel appearing on behalf of the appellants herein – original petitioners has also tried to make submissions on merits on legality and validity of the order of detention dated 11.06.1976, however, for the reasons stated hereinafter and as this Court proposes to dismiss the Letters Patent Appeal on the ground that as the order of detention was never challenged by the detenu or his relatives at the relevant time more particularly during the subsistence of emergency or even during the existence of the order of detention, in view of the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra), the same cannot be challenged by the appellants subsequently, this Court is not considering anything on merits with respect to the challenge to the order of detention dated 11.06.1976.
[4.0] Present Letters Patent Appeal is opposed by Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the Central Government and competent authority under the SAFEMA. He has submitted that the learned single Judge has rightly not considered the legality and validity of the order of detention on merits as neither the detenu nor his relatives challenged the order of detention earlier either during the subsistence of the emergency or even during the existence of the order of detention. It is submitted that the learned single Judge has rightly applied the ratio of law laid down by the Hon’ble Supreme Court in the case of Attorney General For India (Supra). It is submitted that in the decision in the case of Attorney General For India (Supra) [paras 41, 42 and 56], the Hon’ble Supreme Court has specifically held that once the order of detention passed during the emergency is not challenged either during the subsistence of emergency or during the existence of the order of detention, thereafter it is not open for the detenu to challenge the order of detention when the proceedings under the SAFEMA are initiated. It is submitted that as such in the aforesaid decision the Hon’ble Supreme Court has specifically held that the order of detention could have been challenged during the subsistence of the emergency on the grounds which were available during the emergency. It is submitted that as such the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra) is of a Bench consisting of 9 Hon’ble Judges and the same still holds the field so far as the aforesaid aspect is concerned.
[4.1] Now, so far as the decisions relied upon by Shri Sanjanwala, learned Counsel appearing on behalf of the appellants referred to herein above, it is submitted by Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the competent authority that in all the cases it was found that in fact the order of detention was challenged during the existence of the order of detention or during the subsistence of emergency and the same came to be dropped and/or disposed of as infructuous as subsequently the order of detention was revoked and to that the Hon’ble Supreme Court has held that as earlier at the relevant time the order of detention was challenged, which was not decided on merits and the proceedings came to be terminated as having become infructuous, in a subsequent proceeding initiated under the SAFEMA when the order of detention is challenged, the same was required to be considered on merits. It is submitted that in none of the aforesaid decisions the Hon’ble Supreme Court has held that despite the order of detention not challenged by the detenu and/or his relatives either during the subsistence of the emergency or even during the existence of the order of detention, subsequently as and when the proceedings are initiated under the SAFEMA, the same can be challenged.
[4.2] Now, so far as the reliance placed upon the decision of the learned single Judge in the case of Ghelubhai R. Madam (Supra) is concerned, relying upon para 13 of the said decision, Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the Authority has submitted that as such observations made in said para supports the case of the Authority. It is further submitted that even in the case of Amritlal Chandmal Jain (Supra), it is observed by the Hon’ble Supreme Court in para 8 that if Amritlal (detenu) had not challenged his order of detention, during the period of orders of detention were in force, Shri Goswamy (learned Counsel appearing on behalf of the Authority) would have been right but, unfortunately, for him that is not so. It is submitted that therefore, in the said decision also, the Hon’ble Supreme Court has observed that if the detenu had not challenged the order of detention during the period the orders of detention were in force, he cannot challenge the same subsequently. Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the Authority has also relied upon the decision of the Division Bench of this Court in the case of K.D. Shah vs. Union of India reported in 2001(3) GLR 2415. It is submitted that in the said case, similar submissions were made which came to be negatived by the Division Bench.
Relying upon the aforesaid decisions and making above submissions, it is requested to dismiss the present Letters Patent Appeal with exemplary cost.
[4.3] Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the competent Authority has submitted that despite the fact that the proceedings under the SAFEMA have been initiated in the year 1977 still the Authority is not in a position to implement the order passed by the competent Authority under the SAFEMA as the appellants have initiated various proceedings / petitions / appeals one after another and at every stage they have tried to delay the proceedings and even implementation of the order passed by the Authority.
[4.4] Ms. Nisha Thakore, learned Assistant Government Pleader appearing on behalf of the State Government has adopted the submissions made by Shri Hriday Buch, learned Additional Central Government Standing Counsel appearing on behalf of the competent Authority and has requested to dismiss the present Letters Patent Appeal also with exemplary cost.
[5.0] Heard learned advocates appearing on behalf of respective parties at length. The short question which is posed for consideration of this Court is if a detenu and/or his relatives had not challenged the order of detention passed under the provisions of the COFEPOSA either during the subsistence of the emergency [as the order of detention was passed during the emergency] or during the period of order of detention dated 11.06.1976, whether subsequently the same can be challenged when the proceedings under the SAFEMA are initiated and in such proceedings the Court is required to consider on merits the legality and validity of the order of detention?
[5.1] In the present proceedings the learned single Judge considering the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra) has specifically held that as neither the appellant No.1 herein (detenu) nor his relatives challenged the order of detention dated 11.06.1976 either during the subsistence of the emergency or during the period of the order of detention, the same cannot be challenged subsequently when the proceedings under the SAFEMA are initiated. It is the case on behalf of the appellant relying upon the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra) and even the decision of the learned single Judge of this Court in the case of Ghelubhai R. Madam (Supra) that if the order of detention is not considered by the Court earlier on merits and/or till the same is not held to be valid by any competent Court, the same can be challenged as and when the proceedings under the SAFEMA are initiated and the Court is required to consider the legality and validity of the order of detention on merits. However, on considering the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra) and on close reading of the decisions of the Hon’ble Supreme Court relied upon by the learned Counsel appearing on behalf of the appellants, the submission on behalf of the appellants cannot be accepted.
[5.2] In the case of Attorney General For India (Supra) before the Bench of 9 Judges of the Hon’ble Supreme Court, one of the question which was referred to, reads as under:
“Whether an order of detention under Section 3 read with Section 12A of COFEPOSA made during the period of emergency proclaimed under Article 352(1) of the Constitution of India, with the consequent ,suspension' of Article 19 and during which period the right to move the court to enforce the rights conferred by Articles 14, 21 and 22 was suspended can form the foundation for taking action under Section 6 of SAFEMA against the detenu, his relatives and associates? And if it does can the validity of such order of detention be challenged by the detenu and/or his relatives and associates, when proceedings are taken against him/them under SAFEMA, even though the said order of detention has ceased to be operative and was not either challenged or not successfully challenged during its operation?”
While dealing with the aforesaid issue or question, Bench of the 9 Judges of the Hon’ble Supreme Court has observed and held in paras 41 and 42 as under:
“41. From the facts stated above, it is clear that the order of detention was made long prior to the proclamation of emergency on 2561975. He was served with the grounds of detention but not the documents relied upon therein. It does not appear from the judgment whether a declaration under Section 12A of COFEPOSA was made with respect to the said respondent, though it can be so presumed from the fact that his detention was continued up to 2331977. In the above circumstances, this Court said that it was open to the respondent detenu to question the validity of the order of detention when proceedings are taken against him under Sections 6 and 7 of SAFEMA. It is not possible to agree with the reasoning of the decision. There are two ways of looking at the issue. If it is a normal order of detention [not governed by Section 12A nor protected by an order under Article 359(1) suspending the enforcement of Article 22] and if the detenu does not challenge it when he was deprived of his liberty, or challenges it unsuccessfully, there is no reason why he should be allowed to challenge it when action under SAFEMA is taken against him for action under SAFEMA is not automatic upon the fact of detention but only the starting point. On the other hand, if it is an order of detention governed by Section 12A [or by a Presidential Order under Article 359(1) suspending Article 22], it perhaps could still be challenged even during the period of emergency on grounds not barred by the said provisions. Secondly, even if such an order is allowed to be challenged when action under SAFEMA is taken, the challenge must be confined to grounds which were open or available during the period of emergency; otherwise there would be no meaning behind the concluding words in Article 358(1) and Article 359(1 A). Hence, we say that a person who did not choose to challenge such an order of detention during the emergency when he was detained, or challenged it unsuccessfully, cannot be allowed to challenge it when it is sought to be made the basis for applying SAFEMA to him. In either of the two situations mentioned above, i.e., whether the challenge is made during the period of detention or later when proceedings under SAFEMA are taken against him, the grounds of challenge and scope of judicial scrutiny would be the same. Failure to challenge the detention directly when he was detained, precludes him from challenging it after the cessation of detention, where it is made the basis for initiating action under SAFEMA.
42. The other case brought to our notice is in Union of India v. Manoharlal Narang, a decision rendered by a Bench comprising Khalid and Oza, JJ. The facts of this case are rather involved. Respondent, Manohar Lal Narang and one Ram Lal Narang were brothers. An order of detention under Section 3(1) of COFEPOSA was made against Ram Lat Narang on 1912 1974. He challenged the same before the Delhi High Court in Writ Petition No. 10 of 1975 which was allowed on 3041975 and the order of detention quashed. The Union of India preferred an appeal against the said order of the High Court to this Court along with an application for stay. On 151975, this Court declined stay but imposed certain conditions on the movement of Ram Lal Narang (later, the said appeal was dismissed for non prosecution). After the proclamation of emergency on the ground of internal disturbance on 2561975, a fresh order of detention was made on 171975 against Ram Lal on the very same facts and grounds on which he was detained earlier. The said order of detention was challenged in Delhi Court in Writ Petition No. 115 of 1975 filed by a relative of Ram Lal but was dismissed on 25 111975. An appeal was preferred against the said order to this Court being Appeal No. 399 of 1977. At this stage, notice under Sections 6 and 7 of SAFEMA was issued against Ram Lal which he questioned in Delhi High Court in Writ Petition No. 720 of 1975. While the said writ petition was pending in Delhi High Court, Appeal No. 399 of 1975 pending in this Court came up for hearing and was disposed of saying that it would be open to Ram Lal to raise all such contentions as are available to him in Writ Petition No. 720 of 1975, notwithstanding the fact that those grounds were raised in Writ Petition No. 115 of 1975 (from which the said appeal No. 399 of 1975 arose). Writ Petition No. 720 of 1975 was heard and dismissed by the Delhi High Court against which Ram Lal filed SLP No. 9361 of 1982 wherein leave was granted and the appeal was numbered as CA No. 2790 of 1985 which was said to be pending on the date of the said judgment. An order of detention under Section 3 of COFEPOSA was made against the respondent, Manohar Lal Narang, as well on 3111975. He was then in England. He was brought to India and detained. He challenged the same by way of WP No. 2752 of 1975 in the Bombay High Court which was allowed and the detention quashed on 871980. An appeal preferred to this Court against the said order was also dismissed. Thereafter, a showcause notice was issued to Manohar Lal Narang on the ground that he is the brother (relative) of Ram Lal Narang, who was detained under Section 3(1) of COFEPOSA. It may be remembered that a writ petition questioning Ram Lal's detention under the order dated 17 1975 [evidently, an order of detention to which Section 12A of COFEPOSA applied] was dismissed by the Delhi High Court (WP No. 115 of 1975) and even Writ Petition No. 720 of 1975 (in which he was allowed to raise all the available grounds against his detention) was also dismissed. From the facts stated above, it is clear that the basis of action under SAFEMA against Manohar Lal Narang was his brother Ram Lal's detention during the period of emergency, which detention was governed by Section 12A of COFEPOSA. According to our opinion indicated hereinbefore, such an order can constitute a basis for taking action under SAFEMA. So far as the reasoning of the said decision is concerned, it is to the effect that the validity of such an order of detention can be questioned by the detenu or his relative, as and when such an order is sought to be made the foundation for taking action against them under SAFEMA. On that basis, the Court proceeded to examine the validity of the order of detention of Ram Lal and found that the said order is bad for non application of mind to certain highly relevant and material circumstances. We must, however, say that the validity of an order of detention to which Section 12A of COFEPOSA applied, could yet be examined even during the emergency on the touchstone of the law as it obtained during the operation of the Presidential Order under Article 359(1) say on the ground that the provisions of Section 12A were not complied with, or on other grounds, as may not have barred during the said period. But a person who could have so challenged the order of detention and yet chose not to do, cannot be allowed to do so when such an order of detention is made the basis for applying SAFEMA to him this is for the reason that even if he is allowed to challenge the said order when he is served with the notice under Section 6 of SAFEMA, the challenge has to be examined with reference to the position of law as was obtaining at the time the said order was made and the law in force during the period the said order of detention was in operation. Same would be the position in the case of a person who challenged the order but failed in his challenge. Even in the case of a normal order of detention under COFEPOSA, the position would be the same, A person who did not challenge, (either by himself or through his next friend) the order of detention or challenged it but failed, cannot be allowed to challenge the order of detention when action is taken against him under SAFEMA.”
Even in concluding para 56 in subpara 3(b), the Hon’ble Supreme Court has observed and held as under:
“3(b) An order of detention to which Section 12A is applicable as well as an order of detention to which Section 12A was not applicable can serve as the foundation, as the basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the subclauses in the proviso to Section 2(2)(b). If such detenu did not choose to question the said detention (either by himself or through his next friend) before the Court during the period when such order of detention was in force, or is unsuccessful in his attack thereon he, or his relatives and associates cannot attack or question its validity when it is made the basis for applying SAFEMA to him or to his relatives or associates."
Thus, in the aforesaid decision, the Special Bench of the 9 Judges of the Hon’ble Supreme Court has specifically and categorically held that a person who did not challenge [either by himself or through his next friend] the order of detention or challenged it but failed, cannot be allowed to challenge the order of detention when action is taken against him under the SAFEMA. It is further observed by the Hon’ble Supreme Court in the said decision that even during the subsistence of the emergency even the order of detention could have been challenged on the ground that the provision of 12A were not complied with or on other grounds as may be available during the period of emergency. It is further observed that but a person who could have challenged the order of detention and yet choose not to do so, cannot be allowed to do so when such an order of detention is made the basis for applying SAFEMA to him. Shri Sanjanwala, learned Counsel appearing on behalf of the appellants has tried to use few lines in para 42 of the said decision that even if he is allowed to challenge the said order when he is served with the notice under Section 6 of SAFEMA, the challenge has to be examined along with the position of law as was prevailing at the time when the said order was made and the law in force during the period the said order of detention was in operation. So far as this contention is concerned, the entire paragraph and the order is required to be read as a whole. One cannot pick and choose and rely upon few sentences. From the reading of the entire judgment and the observations, it appears that the aforesaid observations are made dealing with the submission made on behalf of the detenu that during the period of emergency the detenu could not have challenged the order of detention. In any case, in the concluding portion while answering the aforesaid issue, the Hon’ble Supreme Court has specifically and categorically held that once the order of detention was challenged during the subsistence of the emergency or during the period of order of detention [on the grounds which were available at the relevant time] or challenged but failed, detenu and/or concerned persons cannot be allowed and challenge the order of detention when the action is taken against him/them under the SAFEMA. At this stage it is required to be noted that the decision of the Hon’ble Supreme Court in the case of Attorney General of India (Supra), is a decision given by a Bench consisting of 9 Hon’ble Judges of the Supreme Court and which still holds the field so far as the aforesaid aspect and issue is concerned. In none of the subsequent decisions, more particularly, decisions relied upon by the learned Counsel appearing on behalf of the appellants, it is held that the law laid down by the Hon’ble Supreme Court in the aforesaid decision is no longer a good law. On close scrutiny and/or considering the facts of the cases / decisions which are relied upon by the learned Counsel appearing on behalf of the appellants, it appears that in the aforesaid cases the order of detention was challenged by the concerned detenu and/or his relatives either during the subsistence of the emergency or during the period of order of detention, which were subsequently disposed of as infructuous as order of detention was revoked.
[5.3] In the case of Karimaben B. Bagad (Supra) which has been heavily relied upon by the learned Counsel appearing on behalf of the appellants, the order of detention was passed under the provisions of COFEPOSA on 25.02.1977 and that order of detention was challenged by filing Special Civil Application No.101 of 1997 in the High Court of Gujarat during the period of order of detention and during the pendency of the said petition challenging the order of detention dated 25.02.1977, the order of detention was revoked by Government on 04.08.1977 and the said petition came to be dismissed as having become infructuous as the detention was revoked and by observing that in view of the above, petition does not survive and thereafter when the order of detention was sought to be challenged when the proceedings under the SAFEMA were initiated based upon the order of detention and when the said petition came to be dismissed without considering the legality and validity of the order of detention on merits, to that the Hon’ble Supreme Court has held that High Court ought to have considered the legality and validity of the order of detention on merits as earlier during the period of order of detention, the order of detention was already challenged which was not considered on merits in view of the order of revocation of detention, the High Court ought to have considered the legality and validity of the order of detention on merits. In the aforesaid decision the Hon’ble Supreme Court has not observed and held that despite non challenge of the order of detention either during the subsistence of the emergency or during the period the order of detention, subsequently, when the proceedings under the SAFEMA are initiated, the order of detention can be challenged. In the aforesaid decision, no contrary view has been taken by the Hon’ble Supreme Court to the view taken by the Special Bench of the 9 Judges of the Hon’ble Supreme Court in the case of Attorney General For India (Supra).
[5.4] Similar is the case in the case of Amritlal Chandmal Jain (Supra). Even in the said decision in para 8 the Hon’ble Supreme Court has specifically observed that if Amritlal (detenu) had not challenged his order of detention, during the period of orders of detention were in force, Shri Goswamy (learned Counsel appearing on behalf of the Authority) would have been right but, unfortunately, for him that is not so. Even in the said decision also, the Hon’ble Supreme Court has not taken any contrary view to the decision taken in the case of Attorney General For India (Supra). Even in the case of Narendra Kumar (Supra) also, it appears that the detenu was detained on 19.12.1974 and the same was challenged by his son by filing the Writ Petition before the Punjab & Haryana High Court during the period of order of detention and during the pendency of the said writ petition, his father was released from the detention and thereafter the High Court dismissed the said writ petition as having become infructuous and thereafter when the proceedings under the SAFEMA were initiated the detenu / his son challenged the order of detention and when the same was not considered on merits, to that the Hon’ble Supreme Court has observed and held that in view of the aforesaid facts and circumstances and when in earlier proceedings which were initiated and filed during the period of order of detention, the same was not considered on merits, the challenge to the legality and validity of the order of detention was required to be considered on merits in the subsequent proceedings. Even in the said decision also, the Hon’ble Supreme Court has not held that despite the detenu and/or his relatives did not challenge the order of detention either during the subsistence of the emergency or during the period of order of detention, subsequently, the order of detention can be challenged. Under the circumstances, the submission and contention on behalf of the appellants that the learned single Judge ought to have considered the legality and validity of the order of detention dated 11.06.1976 on merits has no substance and cannot be accepted.
[5.5] Considering the fact that and as it is an admitted position that the appellants did not challenge the order of detention dated 11.06.1976 either during the subsistence of the emergency or during the period of order of detention, considering the decision of the Hon’ble Supreme Court in the case of Attorney General For India (Supra), thereafter, it is not open for the appellants to challenge the order of detention when the proceedings under the SAFEMA are initiated. The contention on behalf of the appellants that as the order of detention was revoked on 21.03.1977, there was no reason for the appellants to challenge the order of detention and therefore, the appellants did not challenge the order of detention is concerned, as such the aforesaid aspect has also been considered by the Hon’ble Supreme Court in the case of Attorney General For India (Supra). In the aforesaid decision, the Hon’ble Supreme Court has also observed and held that the detenu and/or his relatives could have challenged the order of detention on the grounds which were available during the emergency or on the grounds which might be available under Section 12A of the COFEPOSA. Therefore, what is required to be considered is, whether the detenu and/or his relatives had challenged the order of detention at the relevant time i.e. during the subsistence of the emergency or during the period of order of detention. Even in the aforesaid decision in para 42, the Hon’ble Supreme Court has further observed that a person who could have so challenged the order of detention and yet not choose to do so, he cannot be allowed to do so when such an order is made basis for applying SAFEMA to him.
[5.6] Even in the case of Ghelubhai R. Madam (Supra) which has been relied upon by the learned Counsel appearing on behalf of the appellants, the learned single Judge in para 31(i) has specifically observed that if the detention order has not been challenged during its life time, it cannot be subsequently challenged when proceeding under Section 6(1) of SAFEMA have been undertaken.
[5.7] Considering the aforesaid facts and circumstances, no error has been committed by the learned single Judge in dismissing the Special Civil Application and not considering the challenge to the order of detention on merits and/or in not considering the legality and validity of the order of detention dated 11.06.1976 on merits, as earlier the order of detention was not challenged either during the subsistence of the emergency or during the period of order of detention.
[6.0] Under the circumstances, the present Letters Patent Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed with exemplary cost which is quantified at Rs.25,000/ as, at every stage the appellants have tried to delay the proceedings and initiated the proceedings one after another and even subsequently filed three petitions challenging the order of detention dated 11.06.1976 though the Special Civil Application No.3716 of 1995 was dismissed. As stated hereinabove, even though the proceedings under the SAFEMA have been initiated as far as back in the year 1977 because of various proceedings initiated by the appellants one after another, the proceedings under the SAFEMA are not permitted to reach to its conclusion even after a period of 35 years. Under the circumstances, present Letters Patent Appeal is dismissed with aforesaid cost. Cost to be deposited with the Registry within four weeks from today and on such deposit the same be transmitted to Gujarat High Court Legal Aid Committee.
CIVIL APPLICATION NO.4547 OF 1997 In view of dismissal of main Letters Patent Appeal, no order is required to be passed in Civil Application No.4547 of 1997 and same is disposed of accordingly.
Sd/ (M.R. SHAH, J.) Sd/ (S.H. VORA, J.) Ajay