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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: PARASMAL RAMPURIA

DATE OF JUDGMENT:       16/03/1998

BENCH: S.B. MAJMUDAR, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T MAJMUDAR, J.;      Delay condoned.      Leave granted.      We have heard learned counsel for the parties.      In our  view, a  very unusual  order seems to have been passed in a pending appeal by the Division Bench of the High Court.   It is  challenged by  the Union  of India  in these appeals.  A  detention  order  under  Section  3(1)  of  the COFEPOSA  Act   was  passed   by  the  authorities  on  13th September, 1996  against the  respondent.    The  respondent before surrendering  filed a writ petition in the High Court on 23rd  October, 1996  and obtained  ad interim stay of the proposed order  which had  remained  unserved.  The  learned Single Judge  after  hearing  the  parties  vacated  the  ad interim relief.  Thereafter, the  respondent went  in appeal before the  Division   Bench and  again obtained  ad interim relief on 10th January, 1997 which was extended from time to time.  The writ appeal has not been still disposed of.      When the  writ petition  was filed,  the respondent had not surrendered.   Under  these  circumstances,  the  proper order which  was required  to be passed was to call upon the respondent first  to surrender  pursuant  to  the  detention order and then to have all his grievances examined on merits after  he  had  an  opportunity  to  study  the  grounds  of detention and  to make  his representation  against the said grounds as  required by Article 22(5) of the Constitution of India. It  is true  as the  learned partly  heard before the Division Bench  and the  last hearing  was over on 4th June, 1997 and  thereafter, the  Bench has not reassembled.  It is obvious that  for the  same neither  the respondent  nor the appellant is  at fault.   However, the fact remains that the detention order  dated 13th  September, 1996  has still  not been executed and the respondent has not surrendered.  Under these circumstances,  in our view, it will be appropriate to direct that  the ad  interim relief  which is  extended from time to  time by  the Division  Bench of  the High Court and which was continued all throughout, shall stand vacated.  We also vacate  the further  orders  of  extension  of  interim relief and  direct the  respondent to surrender in the light

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of the  detention order.  After surrendering it will be open to the respondent to amend his writ petition and to take all permissible legal  grounds to  challenge the detention order and these  grounds will  have to  be considered  by the High Court on  their own merits after hearing the parties.  These appeals have  been moved  Also against various extensions of interim relief  orders passed  by the Division Bench pending the appeal.   All these extension orders are also set aside. We make  it clear  that we make no observation on the merits of the controversy centering round this detention order. The said controversy  will have to be resolved by the High Court in the  pending writ  petition after  hearing the contesting parties.      At the  request of  the learned  senior counsel for the respondent the writ appeal which is pending, is permitted to be withdrawn  as the  rightly submits  that  it  has  become infructuous pursuant  to this order.  The appellant is given liberty to  execute the  detention order  forthwith  as  its execution is  already delayed  by more than one year and six months.      Before parting  with the  case,  we  must  mention  one contention canvassed  by the  learned senior counsel for the respondent.   He submitted  that though  the detention order was dated  13th September, 1996, it was not executed against the respondent  till he  obtained interim  relief  from  the learned single  Judge on  23rd October,  1996 and thereafter also  subsequently   there  was   no  interim   relief  from 12.11.1996 to  10.1.1997, yet the order of detention was not executed.    Therefore,  according  to  him,  the  order  of detention  has   become  stale.    This  contention  can  be canvassed by proper amendment to the writ petition after the respondent surrenders.  As and when such amendment is moved, it will  be open  to the  appellants to  contest the amended petition on  all legally  permissible grounds  and  to  have their say  as to  why the  order was not executed during the time when  there was  no stay.  All these questions are kept open for consideration of the High Court in the pending writ petition.      The appeals are allowed accordingly.