http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: KARIMABEN K. BAGAD

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT:       22/07/1998

BENCH: A.S. ANAND, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The husband  of the  appellant was detained by an order of  detention,  dated  25.2.1977  under  the  provisions  of COFEPOSA. That order of detention was challenged by filing a writ petition, being Special Criminal Application No. 101 of 1977 in  the High  Court of  Gujarat. During the pendency of the petition,  the order  of detention  was revoked  by  the Government on  4.8.1977 and  the court  on 8.8.1977 made the following order :      "As the  detention is  revoked, the      petition does  not  survive.  Hence      Rule discharged with no order as to      costs."      The High Court, thus, did not go into the merits of the case and the various grounds on which the order of detention had been questioned.      After the  order of  detention was revoked. It appears, that a  notice under  Section 6  of SAFEMA was issued to the husband of  the  petitioner.  While  the  proceedings  under SAFEMA were  pending, the  husband of  the petitioner  died. Respondent NO.  4, then,  made an order on 23.3.1993 holding that the  petitioner was  a person who fell within the ambit of them  is chief  of Section  2 of  the SAFEMA and directed proceedings under  Section 7  of SAFEMA  to be taken against her. The  petitioner questioned  the proceedings  on various grounds, including  that on  the date  when proceedings were started against  her, there  was no valid and existing order of detention  against the  husband of  the petitioner, which was a  condition precedent  to  initiate  proceedings  under SAFEMA. Reliance  was placed  on the revocation of the order of  detention   in  support   of  this   submission.   While challenging the  proceedings of  the competent authority and the  appellate   tribunal  constituted   under  SAFEMA,  the petitioner also  put in  issue the  validity of the order of detention made  against her husband on various grounds which had ben raised in the writ petition filed by her husband and which the  High Court and dismissed as "infructuous" without going into  the merits  of the case. The High Court took the view that  the revocation  of the  order  of  detention  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

inconsequential insofar  as proceedings  under  SAFEMA  were concerned and  also declined  to go  into the  merits of the challenge to  the order  of detention on the ground that the petition filed  by t  he husband  of the petitioner had been dismissed as  ’infructuous’ in  the year  1977 and  the same could not be ‘revived’ after a period of about twenty years. The  writ   petition  of   the  petitioner  was,  therefore, dismissed on  these two  grounds. The  judgment of  the High Court has been put in issue before us.      We have heard learned counsel for the parties.      Admittedly, the  order of  detention was  challenged by the husband  of the  petitioner on  various grounds  at  the appropriate time.  The High  Court declined  to go  into the merits of the case being of the opinion that since the order of detention  had been  revoked, the  writ petition had been rendered "infructuous".  The High  Court returned no finding on the  merits of the challenge of the order detention. When proceedings  under   SAFEMA  were   initiated  against   the petitioner, after  the  death  of  her  husband,  she  could question   the correctness of the grounds of detention while assailing the  order of  detention since  a valid  order  of detention     is  a   condition  precedent   for  initiating proceedings under  SAFEMA. Since, the  validity of the order of detention  had been  put in issue through a writ petition and the High Court returned no findings on the merits of the case, the  petitioner was  entitled to question the order of detention while  assailing the  proceedings initiated  under SAFEMA against  her. To  deny her  that right  on the ground that after  twenty years  the  challenge  to  the  order  of detention could  not be  received was  unjust and  improper. Since, there  had been  no adjudication on the merits of the order of  detention by  the High Court, though the order had been challenged,  the High Court ought to have gone into the question of  validity of  the order  of detention, since the existence  of   such  an  order  was  the  sine-qua-non  for initiating proceedings  under SAFEMA. The order of detention had been  challenged and that challenge was not unsuccessful on merits.      A  three   Judge  bench  of  this  Court  in  Competent Authority, Ahmedabad, etc. etc. vs. Amritlal Chandmal Jain & Ors. etc.  etc. (Criminal  Appeal No.  2 of  1994 with Civil Appeal  NO.   1487/94  and   Criminal  Appeal   No.  574/94) considered a somewhat identical situation and opined :      "Once the detenu is released during      pendency  of  his  writ  of  habeas      corpus by  the detaining  authority      it cannot  always be said that writ      petition had become infructuous and      that the  grounds  on  which  t  he      order of  detention become invalid.      But then  if the  Court refuses  or      itself does  not go  into the merit      of controversy  in writ  of  habeas      corpus when  detenu is released the      detenu on  that account  cannot  be      made to  suffer holding that he did      not  successfully   challenge   his      order of detention. That is exactly      what has  happened  in  this  case.      Writ Petition  1342/92 came  to  be      disposed of  on July 10, 1985. This      writ petition along with others was      being heard  together.  This  court      did not  go into  the  question  of      validity of  the order of detention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

    but  disposed   of  the  matter  on      account of the fact that detenu had      already  been   released  from  his      detention.  We,  therefore,  cannot      say that  challenge to the order of      detention    by     Amritlal    was      unsuccessful and  that  he  or  his      relatives or his associates were in      any way  debarred from  challenging      the order of detention subsequently      when  notices   under  SAFEMA  were      issued to the. " (Emphasis ours).      The view expressed by the three Judge Bench in Amritlal Chandmal Jain’s  case (supra)  lends enough  support to  the view taken by us.      For what  we have said above, we find that the impugned order of the High Court cannot be sustained. We, accordingly set it  aside and remand the writ petition to the High Court to be  disposed of  on merits.  The appeal  succeeds and  is allowed in  the above terms. We clarify that we shall not be taken to  have expressed  any opinion  on the  merits of the writ petition,  hereby remanded  to the  High Court  for its fresh disposal.      There is no order as to costs.