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CASE NO.: Appeal (civil)  1818 of 2007

PETITIONER: Bhagubhai Dhanabhai Khalasi & Anr

RESPONDENT: The State of Gujarat & Ors

DATE OF JUDGMENT: 05/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.   1818 2007 [Arising out of S.L.P. (C) No. 6257 of 2006]

S.B. SINHA, J.

       Leave granted.

       An order of preventive detention was passed against the appellant  under the Conservation of Foreign Exchange and Prevention of Smuggling  Activities Act, 1974 (for short, "COFEPOSA Act").  He had properties at  Bhadarwal, in the district Jaipur and a fixed deposit receipt of Dena Bank.  The said properties were forfeited under the Smugglers and Foreign  Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short,  "SAFEMA").  He filed a Writ Petition in the Gujarat High Court questioning  the said order of detention as also the order passed under SAFEMA.  The  said Writ Petition was allowed.   A Special Leave Petition filed thereagainst  by the competent authority was also dismissed.  Representations were made  by him for return of the said properties.   An order was passed by the  competent authority on or about 30.1.1996  canceling the Order dated  24.9.1979 whereby and whereunder the properties were directed to be  forfeited.   Allegedly, whereas the fixed deposit receipt was returned to him,  the immovable properties were not.   A Writ Petition was filed by the  appellant.  Allegations made in the said writ petition were denied and  disputed.  Respondent No. 4 who was impleaded as a party thereto  contended that the appellant had transferred the said property in his favour.   A learned Single Judge of the High Court by a Judgment and Order dated  17.1.2005 dismissed the said writ petition, holding; "6.  I have gone through the petition, documents  annexed with the memo of petition, affidavits and other  documents which have been shown to me by the  learned counsel for the respective parties.   The facts of  the present petition are peculiar as during the pendency  of the proceedings, certain changes have been taken  place.  It is the case of the other side that the property in  question has been sold by the Petitioners to the third  party by way of registered sale deed, before finalization  of the proceedings, but the Petitioner has denied the  same. It is the case of the Petitioners that the Petitioners  have not sold the property in question, but some  persons have forged and fabricated documents and the  property has been transferred by way of registered sale  deed, behind the back of the Petitioners illegally and  fraudulently.   It has also been established that during  the course of the proceedings, the property has been  vested to the Jaipur Urban Development Authority.    Thus, the questions which arise for consideration of this  Court in this Petition is disputed questions of facts.   It

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is the case of the Petitioners that they are owners of the  property and it is the duty of the Respondent authorities  to hand over the possession of the property in question  to them and on the other hand, it is prima facie  established that third party interest has created by way  of sale deed since long and same has not been  challenged by the Petitioners on anybody else and the  said registered sale deed is in operation as on today.    Therefore, whether the aforesaid sale-deed is legal and  the same has been executed by the Petitioners or the  same is false and fabricated, cannot be decided in this  proceedings initiated by the Petitioners under Article  226 of the Constitution of India.   The Petitioners are  required to initiate appropriate proceedings before  appropriate Court.

So far as the decisions, upon which the learned counsel  for the Petitioners has placed reliance, are concerned, I  am in total agreement with the ratio laid down in the  said decisions.  But as stated earlier, in this petition  disputed questions of facts have been arisen and  therefore, the Petitioners cannot get benefits of the said  judgment."

                The learned Single Judge, therefore, did not go into the question, as to  whether the appellant had transferred the said property in favour of the  respondent No. 4 herein or not.  An intra-court appeal preferred thereagainst  under the Letters Patent of the Bombay High Court was preferred  thereagainst by the appellant.  Apparently, a question was raised therein as  to whether the same in effect and substance was filed by the appellant or  some other person.

       A handwriting expert opined that two signatures on the application  dated 4.4.1997 and two signatures on a certified Photostat copy of affidavit  dated 13.1.2003 were not that of the appellant.  Appellant was directed to  appear before the Division Bench and he purportedly admitted that he had  executed a deed of sale in favour of the respondent No. 4.  A prayer was  made for withdrawal of the appeal by the learned counsel appearing on the  behalf of the appellant reserving right to agitate the grievances before an  appropriate forum.  The Division Bench while granting permission to  withdraw the appeal refused to grant such permission stating;

"At this juncture, Shri Sanjanwala submitted that his  right to pursue other remedy be reserved.   But,  looking to the peculiar facts and circumstances of  the case and the seriousness of the matter, we made  it clear to Shri Sanjanwala that we may not pass this  order and may not grant simple permission to  withdraw the Appeal, but we may like to decide this  Appeal on merits and ultimately the person  concerned in the matter may have to even face the  consequences.  Thereupon, Shri Sanjanwala gave up  his request."          

       Mr. Ashok Desai,  learned senior counsel appearing on behalf of the  appellant would submit that the Division Bench of the High Court  committed a manifest error in passing the said order, insofar as it failed to  take into consideration that by preferring the appeal, the appellant could not  have been put in a worse condition.   

       Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the  respondent, however, had drawn our attention to the counter affidavit  affirmed by respondent No. 4 to contend that the appellant was guilty of

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making a misrepresentation before the Division Bench of the High Court and  filed a large number of forged documents.  In any event he, having admitted  the execution of the sale deed in favour of the respondent No. 4 herein  cannot be permitted to litigate before any other forum.

       Allegations made in the said counter affidavit are denied and disputed  by the appellant in his rejoinder thereto.

       It does not appear that in relation to the purported report of  handwriting expert, any order was passed upon taking cognizance thereof,  even no proceeding under Section 340 of the Code of Criminal Procedure  was initiated.    

       The Division Bench of the High Court as also the learned Single  Judge admittedly did not enter into the merit of the matter.   The learned  Single Judge noticed the respective cases of the parties and refused to  entertain the writ petition on the premise that the same involved disputed  questions of fact.   He, opined that the appellant may agitate his grievances  before an appropriate forum.  An intra-court appeal was filed thereagainst by  the appellant alone.   The respondent did not do so.  The jurisdiction of the  appellate court, thus should have been kept confined only to the question as  to whether the writ petition should have been determined on merit by the  learned Single Judge.

       A party having a grievance must have a remedy.   Access to justice is  a human right.   When there exists such a right, a disputant  must have a  remedy in terms of the doctrine ubi jus ibi remedium.

       In Dwarka Prasad Agarwal (D) by Lrs. and Another v Ramesh  Chander Agarwal and Others [(2003) 6 SCC 220], this Court held;  "22. The dispute between the parties was  eminently a civil dispute and not a dispute under  the provisions of the Companies Act. Section 9 of  the Code of Civil Procedure confers jurisdiction  upon the civil courts to determine all disputes of  civil nature unless the same is barred under a  statute either expressly or by necessary  implication. Bar of jurisdiction of a civil court is  not to be readily inferred. A provision seeking to  bar jurisdiction of a civil court requires strict  interpretation. The court, it is well settled, would  normally lean in favour of construction, which  would uphold retention of jurisdiction of the civil  court. The burden of proof in this behalf shall be  on the party who asserts that the civil courts  jurisdiction is ousted. (See Sahebgouda v. Ogeppa)  Even otherwise, the civil courts jurisdiction is not  completely ousted under the Companies Act,  1956."

        In Dwarka Prasad Agarwal (D) by Lrs. and Another v B.D. Agarwal  and Others [(2003) 6 SCC 230], this Court held; "38. There is another aspect of the matter which  must also be taken notice of. A party cannot be  made to suffer adversely either indirectly or directly  by reason of an order passed by any court of law  which is not binding on him. The very basis upon  which a judicial process can be resorted to is  reasonableness and fairness in a trial. Under our  Constitution as also the international treaties and  conventions, the right to get a fair trial is a basic  fundamental/human right. Any procedure which  comes in the way of a party in getting a fair trial  would be violative of Article 14 of the Constitution  of India. Right to a fair trial by an independent and

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impartial Tribunal is part of Article 6(1) of the  European Convention for the Protection of Human  Rights and Fundamental Freedoms, 1950 [See Clark  (Procurator Fiscal, Kirkcaldy) v. Kelly].  Furthermore, even if the petitioner herein had filed a  writ petition before the High Court in terms of  Article 226 of the Constitution of India, the same  would not have been entertained as the impugned  order had been passed consequent to and in  furtherance of the purported consent order passed by  the High Court. Ordinarily, the High Court would  not have issued a writ of certiorari for quashing its  own order. Even in that view of the matter it is  apposite that this petition under Article 32 should be  entertained."           See Swamy Atmananda and Ors. v Sri Ramakrishna Tapovanam and  Others [(2005) 10 SCC 51].  

       There is nothing on record to show that the Division Bench while  entertaining the Letters Patent Appeal intended to enter into any other  question.  Judges’ record as is well known is final and conclusive. Any  dispute in relation thereto must be raised before the same Court.

       In Messrs. Associated Tubewells Ltd. v R.B. Gujarmal Modi [A.I.R.  1957 SC 742], this Court deprecated the practice of referring to conversation  which took place in Court, stating;

"4.    We cannot, however, part from this matter  without placing on record our very strong  disapproval of the course that the Advocate \026 a  very senior counsel of this Court \026 has adopted in  making this application.   In the review application  he has referred in detail as to what, according to  him, happened in Court on the prior occasion and  what each Judge said in the course of the  arguments.   The review application sets out at  length what the presiding Judge said and expressed  in the course of the arguments and what his views  were and what the other Judges of the Bench said  and expressed and what the view of each was.  These statements are followed by a confident  assertion how and why the application was  dismissed."

       Yet again in State of Maharashtra v Ramdas Shrinivas Nayak and  Another [AIR 1982 SC 1249], this Court opined;

"7.  So the Judges’ record is conclusive.   Neither  lawyer nor litigant may claim to contradict it,  except before the Judge himself, but nowhere  else."

       See also Guruvayoor Devaswom Managing Committee and Another   v  C.K. Rajan and Others [(2003) 7 SCC 546]

       The Division Bench did not go into the correctness or otherwise of the  allegations and counter allegations made by the parties before it. Whether  appellant was guilty of any forgery or not was not determined.   

       It is therefore, difficult to accept the contention of Mr. Jain that the  Division Bench intended to exercise  larger jurisdiction.   If it intended to do  so, it could have taken recourse to procedure known to law.   

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       It allowed the appellant to withdraw the appeal.  By doing so, the  parties were relegated to the same position to which they had been viz. when  the learned Single Judge dismissed the Writ Petition.   Appellant, thus in our  view could not have been placed in a worse position.                  We, therefore, are of the opinion that the part of the impugned order  whereby and whereunder the Division Bench refused to grant leave to the  appellant to ventilate his grievances before an appropriate forum cannot be  sustained. This appeal is allowed to the aforementioned extent. We,  however, make no order as to costs.