K. Bagad Vs. State of Gujarat & Ors  INSC 353 (22 July 1998)
Anand, V.N. Khare
O R D
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detention was revoked by the Government on 4.8.1977 and the court on 8.8.1977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 :
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
the order of detention was revoked.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.
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 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.
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.
have heard learned counsel for the parties.
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.
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.
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 :
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.
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.
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 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).
view expressed by the three Judge Bench in Amritlal Chandmal Jain's case
(supra) lends enough support to the view taken by us.
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.
is no order as to costs.