IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 477 of 1997 with LETTERS PATENT APPEAL No 616 of 1997 with LETTERS PATENT APPEAL No 617 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- KANTILAL DAMODARDAS SHAH C/O RAJKAMAL PROVISIONS STORES Versus UNION OF INDIA THROUGH SECRETARY -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 477 of 1997 MR SHIRISH SANJANWALA, SENIOR ADVOCATE with MR RS SANJANWALA for Appellant MR JAYANT PATEL for Respondent No. 1 RULE SERVED for Respondent No. 2 MS DS PANDIT, AGP for Respondent No. 3 2. LETTERS PATENT APPEAL No. 616 of 1997 MR SHIRISH SANJANWALA, SENIOR ADVOCATE with MR RS SANJANWALA for Appellant MR JAYANT PATEL for Respondent No. 1 RULE SERVED for Respondents No. 2 and 4 MS DS PANDIT, AGP for Respondent No. 3 3. LETTERS PATENT APPEAL No. 617 of 1997 MR SHIRISH SANJANWALA, SENIOR ADVOCATE with MR RS SANJANWALA for Appellant MR JAYANT PATEL for Respondent No. 1 RULE SERVED for Respondents No. 2 and 4 MS DS PANDIT, AGP for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE M.C.PATEL Date of decision: 26/04/2001 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI) These three appeals which raise common questions have been argued together. 2. Letters Patent Appeal No. 477 of 1997 has been directed against the judgment and order dated 26.12.1996 of the learned Single Judge in Special Civil Application No.3477 of 1996 in which the petitioner had challenged the order of his detention which was made on 19.12.1974 and sought for a declaration that the detention order being void and illegal, no action could be taken against the petitioner and his relatives under the provisions of the Smuggling and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (`SAFEMA' for short). A copy of the order dated 19.12.1974 is at Annexure `B' and a copy of the communication of the grounds of the detention is at Annexure `C' to the petition. 2.1 The petitioner (Kantilal Damodardas Shah) was ordered to be detained pursuant to the detention order dated 19.12.1974 made under Section 5 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (`COFEPOSA' for short). According to the petitioner, the respondent no.2 issued a notice under Section 6 of SAFEMA on 28.04.1979 which was received by him on 03.05.1979 stating that he had reason to believe that properties described in the Schedule to the notice were illegally acquired by the petitioner and called upon him as to why they should not be forfeited to the Central Government under the Act. A copy of the reasons accorded for issuance of notice was also served on the petitioner. The description of the movable and immovable properties in respect of which the notice was given is contained in paragraph 3 of the petition. It is contended that the detention order made against him on 19.12.1974 was illegal and unconstitutional and since that order was bad in law, it cannot form the basis for proceedings against the petitioner or his relatives under the SAFEMA. The petitioner had challenged the order of his detention on various grounds in Special Civil Application No.2051 of 1979. However, the Constitution 42nd Amendment Act of 1976 made it impossible for the detenu to challenge the orders of detention on any of the grounds permissible under Part III of the Constitution. It is stated that after the powers of the Supreme Court and the High Courts were restored for examining the challenge against laws which contravened the provisions of Part III of the Constitution, it became possible for the petitioner to challenge the said order of his detention on the ground of being violative of Article 22 of the Constitution and the provisions of the COFEPOSA. It is stated that the challenge against the provisions of SAFEMA was now not open for the petitioner and, therefore, the petitioner was required to confine his attack to the detention order on the basis of the provisions contained in COFEPOSA. According to the petitioner, the earlier challenge against the order of his detention dated 19.12.1974 could not be pursued by him and could not be decided on merits by the High Court on account of the powers of the High Court being taken away by the Forty-Second Amendment made during the emergency. It is stated that his wife had filed Special Criminal Application No.51 of 1975 challenging the provisions of Section 3 of COFEPOSA and the detention order of the petitioner. However, that petition remained pending without disposal on merits on account of the situation arising out of declaration of emergency. 2.2 In para 9 of the petition, it has been stated that when the earlier petitions filed by the petitioner and his wife came up for hearing, it was advised that on account of the powers of the High Courts and Supreme Court, to enforce the provisions of Part III of the Constitution, having been taken away, it would be better not to pursue the petitions at that stage till those powers were restored and that after restoration of the powers, it would be better for the petitioner to agitate the said points raised by them in the petitions filed by the petitioner and his wife and, therefore, "on this understanding arising out of the impossibility of the High Court in deciding the matter on merits, the said petitions were not pursued". It is then stated in para 10 of the petition that during the pendency of the petitions filed by the petitioner and his wife in which the order of detention was challenged, the period mentioned in the detention order came to an end and therefore, the petitioner was set at liberty without the order of the court and without the order of detention being set aside, either by the Government or by the court, on merits. It was stated that this situation resulted in deprivation of the right of the petitioner to challenge the provisions of the SAFEMA because it could not be said that the release of the petitioner from detention was on account of quashing the order of his detention by any court of law. It is then stated that in view of the notice given by the competent authority under the SAFEMA to appear before him on 09.05.1996 to show that the properties in question were procured out of the earnings made from illegal activities, it became necessary for the petitioner to challenge the order of detention dated 19.12.1974, because, unless that order was set aside judicially, the SAFEMA proceedings which were started against the petitioner and his relatives would be continued. 2.3 Originally, an order was made on 23.09.1974 under the provisions of the Maintenance of Internal Security Act by the Commissioner of Police of the city. That order was challenged by the petitioner's wife in Special Criminal Application No.245 of 1974, as stated in para 15 of the petition. However, before the petition could reach for final hearing, the COFEPOSA was enacted and a fresh order of detention was passed under that Act against the petitioner on 19.12.1974. The petitioner's wife, therefore, withdrew the Special Criminal Application No.245 of 1974. 2.4 There were three grounds on which the order of detention was made on 19.12.1974 and these grounds were communicated to the petitioner by communication dated 22.12.1974. As per the first ground, during the search carried out on April 10, 1966, the Deputy Superintendent of the Central Excise seized goods of foreign make - 99 wrist watches, 3 Shavers and 26 other wrist watches, out of which 26 wrist watches were confiscated by the order dated 10.11.1967 of the Deputy Collector of Central Excise, Ahmedabad, a copy of which is at Annexure E to the petition. The petitioner assailed ground no.1 on the ground that it related to an incident which took place more than 8 years back and therefore had no rational proximity with the detention order. 2.5 The second ground which is referred to in para 24 of the petition related to a search of the petitioner's Rajkamal Provisions Store, which was made on December 10, 1971 during which wrist watches, blades, razors, flints, electric shaver, shaving razors, perfume, lighters, cigarettes, playing cards, fabrics, recording tapes, gas lighters, fountain pens, chocolates and other miscellaneous goods of foreign origin were seized by the Customs officials on a reasonable belief that they were smuggled goods. The Collector, Central Excise decided the case imposing a penalty of Rs.6000/- on M/s. Rajkamal Provisions Stores and Rs.3000/- on the detenu. This ground is challenged on the footing that the detaining authority had not properly applied its mind to all the relevant circumstances of the case and had ignored material facts. 2.6 The third ground which is referred to in para 28 of the petition is in respect of the raid which had taken place on 9th and 10th May, 1972 by the Customs officers on the petitioner's premises during which one film movie projector along with one obscene movie film, one transistor set, two obscene books and one projector bulb of foreign origin valued at Rs.15,372/- were seized. This ground is attacked on the footing that the detaining authority did not apply his own mind to the facts and circumstances of the case. 2.7 It is stated in para 29 of the petition that Special Civil Application No.5528 of 1986 was filed by the petitioner challenging the order of his detention and that was dismissed on 09.08.1994 in view of the judgment of the Supreme Court in Attorney General for India vs. Amratlal Pranjivandas reported in {1994 JT (3) Supreme Court 583}. 3. In the affidavit-in-reply filed on behalf of the respondent no. 2, it was stated that the Special Civil Application No.2051 of 1979 filed by the petitioner was dismissed by the High Court on 09.08.1994. Even the other petition Special Civil Application No.5528 of 1986 was so dismissed on 09.08.1994. Therefore, the present petition, which was filed on the same subject matter, was barred by res judicata and also constructive res judicata. It is stated that in Special Civil Application No.5528 of 1986, the detention order was already challenged while in Special Civil Application No.2051 of 1979, the petitioner could have challenged the same but did not do so. It is further stated that, as admitted by the petitioner, even in Special Criminal Application No.51 of 1975 which was preferred earlier, the said order of detention was challenged. It is stated that as the petitioner did not produce a copy of the order passed in Special Criminal Application No.51 of 1975, no further comments could be offered. It is also stated that the petitioner had undergone the detention period and had abandoned the cause for challenging the detention order and therefore, it was not open for him to challenge the same again. Moreover, since the order of detention dated 19.12.1974 was neither revoked by the Advisory Board nor was it cancelled or quashed by any court, it could not now be challenged while questioning the proceedings under the SAFEMA. It is contended that if the detenu did not choose to question the detention order before the court during the period when such order was in force or was unsuccessful in his attempt to challenge the same, he or his relatives or associates cannot attack or question its validity when the order is made the basis for applying the SAFEMA to him or his relatives or associates. 4. The learned Single Judge took note of the fact that Special Criminal Application No.51 of 1975 was earlier filed by the detenu's wife challenging his detention and that petition came to be rejected by an order of this court on 04.02.1977. The Court also took note of the fact that Special Civil Application No.2051 of 1979 challenging the SAFEMA notice dated 28.04.1979 received by the petitioner on 03.05.1979 was also rejected on 09.08.1994. Special Civil Application No.5528 of 1986 filed by him raising challenges including against his detention order was also rejected on 09.08.1994 in view of the decision of the Supreme Court in the case of Attorney General for India vs. Amratlal Pranjivandas (supra). The learned Single Judge held that the matter was squarely covered by the ratio of the decision of this court in Manharlal R. Tailor vs. Competent Authority reported in XXXVIII (2) GLR 1151 in which it was held that subsequent petitions containing identical prayers as in the previous petitions were barred by constructive res judicata because for the same cause of action, a party cannot be allowed to litigate the issue time and again. The learned Single Judge therefore upholding the preliminary objection raised by the respondents rejected the petition (Special Civil Application No.3477 of 1996) on the ground that it was barred by the principles of constructive res judicata. 5. The Letters Patent Appeal No.616 of 1997 arises out of Special Civil Application No.8429 of 1996 which was filed on similar grounds by the detenu's wife Pushpaben challenging the order of detention of her husband Kantilal as unconstitutional, illegal and invalid and for restraining the respondent authorities from taking any steps against her under the SAFEMA. The petition was heard along with the main matter and by order dated 26.12.1996, it was rejected by the learned Single Judge for the same reasons as were given for rejecting the Special Civil Application No.3477 of 1996. 6. Letters Patent Appeal No.617 of 1997 arising from Special Civil Application No.8467 of 1996 filed by Rajnikant, son of the detenu which raised identical issues was also rejected by the learned Single Judge for the same reasons on 26.12.1996. 7. The learned senior counsel appearing for the appellants in these appeals submitted that the question of res judicata has been erroneously decided by the learned Single Judge and that the judgment in Manharlal Ratilal Tailor's case (supra) has no application to the facts of these cases. It was submitted that in the present case though the detention order was earlier challenged in Special Criminal Application No.51 of 1975 and Special Civil Application No.5528 of 1986, the validity of the detention order was never examined on merits in either of these two petitions. It was submitted that though the detention order was challenged, the challenge had never failed on merits. He pointed out that while disposing of Special Criminal Application No.51 of 1975 in which the detention order was challenged by the petitioner's wife as his next friend, the court had, on 24.2.1977, made the order dismissing the petition on the ground that the enforcement of the fundamental rights was suspended leaving it open to the petitioner to make a fresh application after the ban imposed on the enforcement of the rights conferred by Articles 14, 19, 21 and 22 was lifted. He submitted that even Special Civil Application No.5528 of 1986 was dismissed on 09.08.1994 without going into the merits of the challenge against the validity of the said detention order and it was simply ordered that in view of the decision of the Supreme Court in the case of Attorney General for India vs. Amratlal Pranjivandas (supra), the petition was dismissed. Identical order was made for dismissing Special Civil Application No.2051 of 1979 on the same date. It was submitted that thus, the challenge against the detention order never failed on merits and it was due to the operation of the emergency period that no final adjudication could take place in Special Criminal Application No.51 of 1975 in which the detention order was challenged because during the pendency of the petition, the court could not have examined the question of validity of the order and since the court itself had reserved liberty for the petitioner to file a fresh petition after the ban was lifted, there could arise no question of invoking the doctrine of res judicata or constructive res judicata against any subsequent challenge by the petitioner. It was submitted that so long as the SAFEMA notice was not issued on the detenu and his relatives, they had no reason to challenge the detention order since the detenu had already undergone the period of detention. It was the SAFEMA notice which furnished a fresh cause of action for challenging the detention order. It was also submitted that had the court not dismissed the Special Criminal Application No.51 of 1975 on 04.02.1977, the petitioner could have raised additional grounds for challenging the detention order, such as, that the grounds were non-existent when the detention order was made or that the matter was not reviewed when the detention was continued under Section 12-A of the COFEPOSA. It was further argued that once emergency was revoked on 21.03.1977, it was obligatory on the part of the respondents to furnish the grounds of his continued detention under Section 12-A of the Act. The learned senior counsel submitted that this detenu's case falls within the ratio of the Attorney General's case (supra) which was followed and explained in three subsequent judgements of the Supreme Court in Competent Authority, Ahmedabad vs. Amritlal Chandmal Jain and Others reported in (1998) 5 SCC 615, Gangadevi (Smt.) vs. Union of India and Another reported in (1996) 6 SCC 401 and Karimaben K. Bagad vs. State of Gujarat and Others reported in AIR 1998 SC 2938. It was submitted that the effect of these decisions of the Supreme Court was that if there was a challenge against the order and the court did not go into the question on merits for any reason, the detention order could be examined while questioning the proceedings under the SAFEMA. The learned senior counsel submitted that if the court does not decide the merits of the matter or is precluded due to emergency to go into the question of validity of the detention order, the detenu cannot be blamed in the matter and should be in a position to raise a challenge against the order when the SAFEMA proceedings are initiated giving a fresh cause of action to the detenu and his relatives at a time when the court was free to go into the question of the validity of the detention order. 8.1 The learned senior counsel relied upon the following decisions in support of his contentions: (a) Ghulam Sarwar, vs. Union of India and Others reported in AIR 1967 SC 1335, a decision of the Constitution Bench, was cited for the proposition that the principle of res judicata is not applicable in a writ of habeas corpus so far as High Courts are concerned. But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a Court other than the High Court namely, the Supreme Court. The order of High Court in such a case will not be res judicata because it is either not a judgement or because the principle of res judicata is not applicable to a fundamentally lawless order. (b) The decision in Kewal Singh, vs. Mt. Lajwanti reported in AIR 1980 SC 161 was cited for the proposition, reflected in paragraph 8 of the judgement, that it was well settled that one of the essential conditions of res judicata is that there must be a formal adjudication between the parties after full hearing. In other words, the matter must be finally decided between the parties. (c) The learned senior counsel referred to the decision of the Supreme Court in Lallubhai Jogibhai Patel vs. Union of India and Others reported in AIR 1981 SC 728 in which the Supreme Court in para 13 of its judgement held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings. This principle of public policy is inapplicable to illegal detention and does not bar a subsequent petition under a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief. In the petition before the Supreme Court, as it was noted, additional grounds were taken to challenge the illegality of the continued detention of the detenu and the Supreme Court therefore held that the subsequent writ petition was not barred by res judicata and overruled the preliminary objection which was raised by the respondents. (d) The decision in Kirit Kumar Chamanlal Kundaliya vs. Union of India and Others reported in AIR 1981 SC 1621 was cited for the proposition that the doctrine of res judicata was inapplicable to cases where the two forums have different and independent jurisdictions. It was held that in a subsequent petition under Article 32, points not agitated before the High Court under Article 226 can be agitated. (e) The decision of the Supreme Court in Indian Oil Corporation Ltd. vs. State of Bihar and Others reported in AIR 1986 SC 1780 was cited to point out that it was held by the Supreme Court that dismissal of a Special Leave Petition in limine by a non-speaking order does not justify any inference that by necessary implication, the contentions raised in the Special Leave Petition on merits of the case have been rejected by the Supreme Court. It was held that neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of the Supreme Court dismissing the Special Leave Petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court. (f) The decision of the Supreme Court in Pandurang Ramchandra Mandlik (since deceased by his Lrs.) and another vs. Smt. Shantabai Ramchandra Ghatge and Others reported in AIR 1989 SC 2240 was cited to point out that it was held that remanding of a case by the High Court for hearing by Trial Court with a direction to refer issues regarding tenancy to the tenancy authorities was held not to have been barred by the principle of res judicata. (g) The decision of the Supreme Court in Ramesh Chandra vs. Shiv Charan Dass and Others reported in AIR 1991 SC 264 was referred to for pointing out that it was held that one of the tests to ascertain if a finding operates as res judicata is whether the party aggrieved could challenge it. (h) Referring to the decision of the Supreme Court in Attorney General for India vs. Amratlal Pranjivandas (supra), the learned senior counsel pointed out from paragraph 41 of the judgment that the Supreme Court had held that a person who did not choose to challenge the detention order 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. He submitted that this clearly meant that either the detenu should not have at all challenged the order of detention or if he had challenged he should have been unsuccessful in the challenge which meant that his challenge should have been negatived on merits and therefore the ratio of this decision did not go against the detenu who had not been unsuccessful in his challenge against the order of detention because its validity was never examined on merits due to emergency provisions. (i) The decision of the Supreme Court in Gangadevi (Smt.) vs. Union of India and Another reported in (1996) 6 SCC 401 was cited to point out that the widow of the detenu who had died while in detention was entitled to challenge his