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PETITIONER: SMT. GANGADEVI

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT:       01/10/1996

BENCH: B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Petitioner is  the widow  of  one  Shrikrishna  Gopilal Solanki who  died on  May 1,  1976 while  in detention.  The petitioner  is   seeking  to  question  the  validity  of  a detention order  passed against  her husband under Section 3 read with  Section 12-A  of Conservation of Foreign Exchange and Prevention  of  Smuggling  Activities  Act,  (COFEPOSA), 1974, for  the reason  that on  the basis  of such detention order,  proceedings   have  been   initiated   against   her properties  under   the  Smugglers   and  Foreign   Exchange Manipulators (Forfeiture of Property) Act, (SAFEMA), 1976.      An order  dated September  25, 1974  was passed against Solanki under  Section 3 of Maintenance of Internal Security Act, (MISA),  1971 and  he was  detained. Solanki questioned the same by way of a writ petition in the Bombay High Court. While that  writ petition  was pending,  parliament  enacted COFEPOSA and it was brought into force on December 19, 1974. On the  same day,  the order  of detention  under  MISA  was revoked and  an order of detention was passed under COFEPOSA against Solanki.  The writ petition filed by Solanki against the detention  order under MISA  was withdrawn and dismissed as infructuous.      On June  25, 1975  the President  of  India  proclaimed emergency under  Article 359 of the Constitution and on June 27, 1975,  the president made an order under and in terms of Article  359   of  the   Constitution    suspending  certain fundamental rights.      By its order dated September 22, 1975 the High court of Bombay quashed  the order  of detention  dated December  19, 1974. On  the same  day, however, a fresh order of detention made under  Section 3 read with Section 12-A of COFEPOSA was served on solanki He continued under detention.      On November  5, 1975,  SAFEMA Ordinance was Promulgated by the  president of  India which was later made into an Act with effect from the date of Ordinance.      On January  19,1976,  Solanki  filed  a  writ  petition (Criminal M.P.  No. 134  of 1976)  in the  Bombay High Court challenging the  validity of  the order  of detention  dated September 22,  1975. The  writ  petition  was  admitted  and notice was issued to the State.

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    On 11th  March, 1976, notices were issued under Section 6 of  SAFEMA to  the petitioner  proposing forfeiture of the properties standing in her name.      On May  1, 1976,  as stated  above, Solanki  died while under detention.      Another notice  under Section 6 of SAFEMA was issued to the petitioner  on October 19, 1976. The petitioner sent her reply thereto.      On April  12, 1977,  the writ petition filed by solanki (criminal M.P.  134 of 1976) was dismissed as infructuous on a representation made by the Public Prosecutor appearing for the State  that the detente has been released. Admittedly it was an  incorrect representation.  the detente  had  expired while in detention, as stated above, on May 1, 1976 itself. Pursuant to the notice issued under Section 6, the Authority under  SAFEMA  passed  orders  forfeiting  the  petitioner’s properties under  the said  Act. An  appeal preferred by the petitioner was  dismissed by  the Tribunal  on June 7, 1979. Thereupon the  petitioner approached the Delhi High Court by way of  a writ  petition challenging  the said  orders under SAFEMA (writ  petition No.  1487 of  1979). The  High  Court dismissed the  writ petition  on 12.10.79  against which the present SLP  was filed in June 1980. On 18.4.1983 this Court granted special  leave to  appeal and on 12.11.92, the court permitted the  petitioner to  amend  her  S.L.P.  so  as  to challenge the  detention order dated 22 September, 1975 made against  her   deceased  husband.  The  petitioner  did  so. Thereafter by  an order  dated September 8, 1994, this Court treated the  said Civil  Appeal as  a  writ  petition  under Article 32 of the Constitution. It has been numbered as writ petition 574 of 1994.      Under Section  2(2) (b)  (iv)  of  SAFEMA,  proceedings under the  said Act  can be  taken in  case of a person (his relatives and associates) against whom an order of detention has been  made under  COFEPOSA and  "such order of detention has  not   been  set   aside  by   a  court   of   competent jurisdiction". The respondents say that inasmuch as an order of detention  dated September  22,  1975  was  made  against Solanki under COFEPOSA and because it has not been set aside by a  court of competent jurisdiction, the proceedings taken against the  petitioner (who  is a  ‘relative’ of Solanki as defined in  the said Act) are perfectly valid and competent. As against  this,  the  contention  of  the  petitioner  is: solanki had  filed a  writ petition challenging the validity of the  aforesaid order  of detention  in  the  Bombay  High Court. While  it was pending, he died. The order made by the High Court on April 12, 1977 dismissing the writ petition as infructuous, acting  upon and  incorrect representation made on behalf  of the  State that  the detente  has already been released, is a nullity in law. Not only the detente was dead long prior to the said order but also because the said order was  induced   by  and   based  upon   a  totally  incorrect representation of  fact viz.,  that the  detente has already been released.  there has been no pronouncement by any court upon the  validity of  the detention  order dated 22.9.1975. The petitioner  is entitled to challenge the validity of the aforesaid detention  order because  it is  now being  made a foundation for  forfeiting her  properties under SAFEMA. The validity of  the said  detention order was indeed questioned by Solanki  himself and unless the challenge is repelled, it cannot be  made a  basis for  initiating  proceedings  under SAFEMA against  the petitioner  (his wife).  It may  well be that the  Court will  set it aside, in which case the entire proceedings taken  under SAFEMA  against the petitioner will fall to ground, says the petitioner.

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    This aspect  has been  dealt with by a special Bench of nine Judges  of this Court in Attorney General for India and Others v.  Amratlal Prajivandas  and Others [1994 (5) S.C.C. 54]. The  decision deals  with several aspects arising under the aforesaid  enactments. What  is however, relevant herein is the  discussion in  paragraphs 35 to 42 (pages 83 to 87). In particular,  the following holding in para 41 is relevant to the present controversy:      "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-AP.  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."      Now, the writ petition filed by Solanki was not decided on merits.  It was  dismissed on  the basis  of an incorrect representation made  by the state. It was an order against a dead person.  It is  a nullity.  Since  the  said  order  of detention is  being made a basis for initiating action under Section 6 of SAFEMA, the petitioner is entitled to challenge it. It  cannot be  gainsaid that  but for  the said order of detention against  Solanki, no  proceedings could  have been taken  against   the  petitioner  (his  wife).  She  cannot, therefore,  be  denied  the  right  to  challenge  the  said detention order.  Of course,  it follows from the holding in Amrat  Lal  Prajivandas  that  challenge  to  the  order  of detention dated  September 22,  1975 (made  against Solanki) has to be examined with reference to the law obtaining as on the date  the said  order was made and not with reference to the law  obtaining at  any later  point  of  time.  Now  the question is whether that should be allowed to be done in the writ petition  filed by  the petitioner  in the  Delhi  High Court (it  is really  directed against the orders made under SAFEMA against  her) or  should it  be allowed to be done in the writ  petition (Crl.M.P.  134 of 1976 on the file of the Bombay High  Court) which  was disposed  of on  the basis of wrong representation  and after  the death  of  the  detente (writ petitioner  therein). In our opinion the proper course is to  treat the  order dated  April 12,1977 (dismissing the writ petition  Crl.M.P. 134  of 1976 as still pending on the file of  the Bombay  High Court.  The  petitioner  shall  be

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allowed to  continue the said writ petition which shall have to be  disposed of  now according to law in the light of the observations made  hereinabove and  in accordance  with  law laid down in Amratlal Prajivandas. We must mention by way of clarification that  though in the ordinary course, the death of a  detente should bring the writ petition challenging the order of detention to an end, the position here is different because of  the fact  that the  said order  of detention  is being made  a  foundation  for  initiating  proceedings  for forfeiting the  petitioner’s properties  on the  ground that she is  a "relative"  of deceased-detenue.  It is  in  these peculiar circumstances  that we  are obliged  to  adopt  the unusual course indicated above.      Accordingly the  writ petition  is disposed of with the following directions:      (1) The  order dated  April 12, 1977 made by the Bombay High Court  dismissing the  writ petition  (Crl.M.P. 134  of 1976 filed  by Shrikrishna  Gopilal Solanki  challenging the order of  detention dated  September  22,  1975  made  under Section 3  read with section 12-A of COFEPOSA) is treated as a nullity.  The said  writ petition  shall be  deemed to  be continuing on  the file of the Bombay High Court. It is open to  the  petitioner  to  continue  the  said  writ  petition provided she applies to the Bombay High Court for permission to come  on record in the said writ petition and to continue it, within  two month  from today. If such an application is made, t shall be entertained by the High Court and she shall be allowed to continue  the writ petition. The writ petition shall be  disposed of  in   accordance with law as indicated hereinabove.      (2)  If   the  petitioner   makes  an  application  for continuing the  writ petition  as mentioned in direction (1) above, the  orders made against her in SAFEMA  shall  remain stayed pending  disposal of  the said writ petition. In case the writ petition is allowed, it is obvious, the proceedings taken against  the petitioner  under SAFEMA  shall stand set aside. In case, however, the said writ petition is dismissed the said  proceedings taken  under SAFEMA   shall  be  given effect to subject of course to any orders of this Court.      (3) In case the petitioner does not apply to the Bombay High court for continuing the aforesaid writ petition within the period  prescribed in  direction (1)  above, the  orders made against her under SAFEMA  shall be given effect to.      The writ petition is disposed of . There shall be no orders to costs.