Case: Union Of India  Vs. Mohanlal Likumal Punjabi

Union of India questions legality of the judgments rendered by the Division Bench of the Bombay High Court holding that order dated 31.8.1995 passed by the Competent Authority under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short The SAFEMA) against respondent nos. 1 and 2 was not sustainable in law. for coming to such conclusion, reference was made to orders dated 19th December, 1994 passed under Section 11(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (in short the COFEPOSA revoking the order of detention and order dated 11.1.1995 passed in earlier writ petition filed by respondent nos. 1 and 2. Reference was made to first proviso to Clause (b) of sub-section (2) of Section 2 of SAFEMA for holding that proceedings initiated under the said statute became non est.

Reasoning:
We shall first deal with the effect of concession, if any, made by learned counsel appearing for the present appellants before the High Court. Closer reading of the High Courts order shows that the High Court took the view that in view of the revocation of the order on 19th December, 1994 and the order passed by the High Court on 11th January, 1995, no further order could have been passed under7 of SAFENA. After having expressed this view, the so-called concession is recorded. In our view the concession, if any, is really of no consequence. because the wrong concession made by a counsel cannot bind the parties when statutory provisions clearly providedthe instant case, the selection was made by the Departmental Promotion Committee. The Committee must have considered all relevant facts including the inter se merit and ability of the candidates and prepared the select list on that basis. The respondent, though senior in comparison to other candidates, secured a lower place in the select list, evidently because the principle of "merit-cum-seniority" had been applied by the Departmental Promotion Committee. The respondent has no grievance that there were any mala fides on the part of the Departmental Promotion Committee. The only contention urged by the respondent is that the Departmental Promotion Committee did not follow the principle of "seniority-cum-fitness". In the High Court, the appellants herein failed to point out that the promotion is in respect of a "selection post" and the principle to be applied is "merit-cum-seniority". had the appellants pointed out the true position, the learned Single Judge would not have granted relief in favour of the respondent. If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot ensure to the benefit of any party.That brings us to the residual question as to whether the order of detention could be challenged subsequent to the disposal of the earlier writ petition on the ground that it had become unfructuous. According to learned counsel for appellants position has been settled beyond doubt that it is impermissible in view of what has been stated in Attorney Generals area. This submission deserves no serious consideration, being one made in disregard of the view taken already by this Court. We find that the effect of said decision was considered in the two decisions relied upon by learned counsel for respondent nos. 1 andboth these cases, it was held that the subsequent with petition is maintainable and it should rightly be so having regard to the consequential action taken at any rate under SAFEM. Otherwise it would amount to the Government concerned being allowed/enabled to by their action disable and denude the person aggrieved from questioning the very applicability of SAFEMA to him or his properties de hors his other rights to challenge the same otherwise on merits as well. In any event, this aspect as to the legality and validity of the order of detention does not appear to have been considered and decided on merits by the High Court. We, therefore, remit the matter back to the High Court for fresh adjudication on merits as to the legality and validity of the orders of detention, for the purpose of applying the provisions of SAFEMA against the respondents or the properties