Union of India Vs. Ghamandiram Kewalji Gowani [1994] INSC 497 (28 September 1994)
Ray,
G.N. (J) Ray, G.N. (J) Faizan Uddin (J)
CITATION:
1995 SCC (1) 40 JT 1994 (6) 370 1994 SCALE (4)374
ACT:
HEAD NOTE:
ORDER
1. The
respondent Ghamandiram Kewalji Gowani was detained under Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter
referred to as COFEPOSA) in 1974. The said order of detention was challenged by
the son of the detenu Shri Tej Raj before the Bombay High Court and after
considering the grounds of detention, the Bombay High Court quashed the
detention order by judgment dated 1-11-1974. Sometime in June 1975 during the
period of emergency declared under the Constitution, another detention order
was passed against the said Ghamandiram. The second detention order was also
challenged in the Bombay High Court. By an interim order dated 10-3- 1976, the
Bombay High Court held that the detenu was entitled to challenge the grounds
for detention and the petition presented before the High Court for such
challenge was maintainable. On the revocation of the emergency, the detenu was
released but the challenge to the detention order, was pursued and ultimately
by the judgment and order dated 23-2-1981, the Bombay High Court set aside and quashed the second detention
order.
+ From
the Judgment and Order dated 23-2-1981 of the Bombay High Court in Crl. Appeal
No. 1320 of 1975 41 2.The instant appeal arises out of such judgment of the
Bombay High court dated 23-2-1981 quashing the second detention order. During
the pendency of this appeal, the respondent Ghamandiram died on 2-2-1983. No application for substitution of the heirs of the
legal representatives of the said deceased respondent Ghamandiram was made
within the period of limitation. No application for setting aside abatement
after condonation of delay has also been made. It may be stated here that in
view of the said order of detention passed against Ghamandiram, three notices
were issued, one against the deceased Ghamandiram and two against two sons of
deceased under Section 6 of Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act (hereinafter referred to as SAFEMA). It has been
contended in the application for substitution that since the other appeals have
also been preferred against quashing of such notices issued under SAFEMA to the
sons of Ghamandiram and in such appeals, the question of the validity of second
detention order also arises for determination, there is no question of
abatement of the instant appeal because in other appeals some of the heirs of Ghamandiram
are already on record. Such contention has been seriously disputed by the
learned counsel who has entered appearance for the sons of Ghamandiram in the
other appeals by contending that they cannot be held to be on record of the
appeal preferred against Ghamandiram in the matter of quashing detention order
for allowing the application for substitution made long after the period of
limitation. It may be stated here that it is not the case of the appellant that
the appellant was not aware of the death of Ghamandiram because such fact of
death was made known and in the application for substitution it has been stated
that such application was not made earlier because in the connected appeals,
the heirs of Ghamandiram were already on record.
3. The
learned counsel opposing the prayer for substitution has contended that the
other appeals preferred against some of the heirs of Ghamandiram are
independent appeals and they arise out of a different cause of action.
The
notices under SAFEMA to sons of Ghamandiram were issued not in the capacity of
their being heirs of Ghamandiram and holding the properties of Ghamandiram but
on the basis of their being close relations of the detenu under COFEPOSA, within
the meaning of SAFEMA, the properties owned by them were also liable to be
confiscated under the provisions of SAFEMA. In such circumstances, learned
counsel opposing the application for substitution contends that the question of
doctrine of presentation of the estate of a deceased party as sought to be
raised in support of the application for substitution does not arise and the
application for substitution being hopelessly time-barred should be dismissed.
4. The
learned counsel for the appellant has, however, relied upon the decision of
this Court in Mahabir Prasad v. Jage Ram1 for contending that since in the
connected appeals, the heirs of Ghamandiram were already on record, there was
no question of abatement of this appeal. We are, however, 1 (1971) 1 SCC 265 :(1971)
3 SCR 301 42 unable to accept such contention. In the said decision the
question of abatement of a proceeding was considered where in the same
proceeding, one of the heirs of a deceased party was already on record. The
said decision does not relate to abatement of a different proceeding which is
independent of the other proceedings where an heir in his personal capacity is
a party. In the aforesaid circumstances, the application for substitution which
is otherwise hopelessly time-barred is rejected'. Consequently, this appeal
abates and is therefore dismissed.
CA
Nos. 928 and 1198 of 1991
5.
List the matters on 8-11-1994 as prayed for by the learned counsel for the
parties.
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