Holding

The order dismissing the writ petition is a nullity, the petition remains pending and may be continued by the widow, and the SAFEMA orders are stayed pending its disposal.

Summary

The widow of Shrikrishna Gopilal Solanki, who died while detained under COFEPOSA, challenged the forfeiture of her properties under SAFEMA. Solanki had filed a writ petition in the Bombay High Court contesting his detention order, but the petition was dismissed as infructuous on the basis of an incorrect representation that he had been released, even though he had died. The Supreme Court held that the dismissal order is a nullity, thereby keeping the original writ petition pending and allowing the widow to continue it. Consequently, the orders passed under SAFEMA against the widow are stayed pending the resolution of the detention order challenge. The Court directed that the widow may apply to the Bombay High Court within two months to be allowed to continue the writ petition, and if she does not, the SAFEMA orders will take effect.

Issues considered

Whether the death of a detainee terminates a pending writ petition challenging the detention order.
Whether a dismissal order based on an incorrect representation is a nullity.
Whether the widow can continue the writ petition filed by her deceased husband.
Whether proceedings under SAFEMA can be stayed pending the outcome of the detention order challenge.
Whether challenges to a detention order must be confined to grounds available during the emergency period.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 12-A, s. 3
Maintenance of Internal Security Act, 1971s. 3
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976s. 2(2)(b)(iv), s. 6

Subjects

detention orderCOFEPOSASAFEMAforfeiture of propertywrit petitionnullitydeath of detaineeemergency provisionsArticle 32

Judgment

A SMT. GANGADEVI
v.
UNION OF INDIA AND ANR.

OCTOBER 1, 1996

B
[B.P. JEEVAN REDDY AND K.S. PARIPOORNAN, JJ.)

Conservation of Foreign Exchange and Prevention of Smuggling Ac-
tivities Act, 1974/Smugglers and Foreign Exchange Manipulators (Forfeiture
of Property) Act, 1976:
c
S.3 read with s.12A/s.6-Relative's right to contest/challenge the order
of detention of detenu after his death-Detenu filing writ petition challengbig
his order of detention dated 22.9.1975-Notice u/s.6 of SAFEMA issued on
11.3.1976 Pending writ petition detenu died on 1.5.1976-Writ petition dis-
D missed as infrnctuous on the statement of Public Prosecutor that detenu had
been released-Orders under SAFEMA passed forfeiting his properties---Wife
of detenu challenged the orders under SAFEMA-High Court dismissed wlit
petition-Special leave petition by wife-This Court pennitted the wife to
challenge the order of detention of her husband-Appeal was treated as Wlit
petition under Article 32 of the Constitution-Held, writ petition filed by
E detenu was not decided on melits, and the order dated 12.4.1977 on the writ
petition on the basis of an inco"ect representation made by the State is a
nullity--Wife of detenu is entitled to contest the wlit petition filed by her
husband and to challenge proceedings under s.6 of SAFEMA-Challenge to
the order of detention passed on 22.9.1975 has to be examined with reference
p to the law obtaining as on that date-Writ petition challenging the detention
order and dismissed by Bombay High Court would be treated as pending and
the wife of deceased detenu would be allowed to continue the said writ
petition-!f she makes application for continuation of the writ petition the
orders made against her in SAFEMA shall abide by the result of the said writ
G petition.

Attorney General for India and Others v. Amrat Lal Prajivandas and
Others, [1994) 5 S.C.C. 54, followed.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 574 of
H 1994.
128
GANGADEVI v. U.O.I. 129

(Under Article 32 of the Constitution of India.) A
S.V .. Tambwekar for the Petitioner.

V.K. Verma and C.V. Subba Rao for the Respondents.

The following Order of the Court was delivered: B
Petitioner is the widow of one Shrikrishna Gopilal Solanki who died
on May 1, 1976 while in detention. The petitioner is seeking to question
the validity of a detention order passed against her husband under Section
3 read with Section 12-A of Conservation of Foreign Exchange and Preven-
tion of Smuggling Activities Act, (COFEPOSA), 1974, for the reason that C
on the basis of such detention order, proceedings have been initiated
against her properties under the Smugglers and Foreign Exchange
Manipulators (Forfeiture of Property) Act, (SAFEMA), 1976.

An order dated September 25; 1974 was passed against Solanki under D
·-
J
Section 3 of Maintenance of Internal Security Act, (MISA), 1971 and he
was detained. Solanki questioned the same by way of a writ petition in the
Bombay High Court. While that writ petition was pending, Parliament
enacted COFEPOSA and it was brought into force on December 19, 1974.
<.- On the same day, the order of detention under MISA was revoked and an
order of detention was passed under COFEPOSA against Solanki. The writ E
petition filed by Solanki against the detention order under MISA was
withdrawn and dismissed as infructuous. .

On June 25, 1975 t~e President of India proclaimed emergency under
Article 352 of the. Constitution and on June 27, 1975, the President made
an order under and in terms of Article 359 of the Constitution suspending F
certain fundamental rights.

By its order dated September 22, 1975 the High Court of Bombay
quashed the order of detention dated December 19, 1974. On the same
day, however, a fresh order of detention made under Section 3 read with G
Section 12-A of COFEPOSA was served on Solanki. He continued under
detention.

On November 5, 1975 SAFEMA Ordinance was promulgated by the
President of India which was later made into an Act with effect from the
date of Ordinance. H
130 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.
A On January 19, 1976, Solanki filed a writ petition (Criminal M.P. No.
134 of 1976) in the Bombay High Court challenging the validity of the order
of detention dated September 22, 1975. The writ petition was admitted and
notice was issued to the State.

On 11th March, 1976, notices were issued under Section 6 of
B SAFEMA to the petitioner proposing forfeiture of the properties standing
in her name.

On May 1, 1976, as stated above, Solanki died while under detention.

Another notice under Section 6 of SAFEMA was issued to the
c petitioner on October 19, 1976. The petitioner sent her reply thereto.

On April 12, 1977, the writ petition filed by Solanki (Criminal M.P.
134 of 1976) was dismissed as infructuous on a representation made by the
Public Prosecutor appearing for the State that the detenue has been
D released. Admittedly it was an incorrect representation. The detenue had
expired while in detention, as stated above, on May 1, 1976 itself.

Pursuant to the notice issued under Section 6, the Authority under
SAFEMA passed orders forfeiting the petitioner's properties under the
said Act. An appeal preferred by the petitioner was dismissed by the
E Tribunal on June 7, 1979. Thereupon the petitioner approached the Delhi
High Court by way of a writ petition challenging the said orders under
SAFEMA (writ petition No.1487 of 1979). The High Court dismissed the
writ petition on 12.10.79 against which the present SLP was filed in June
1980. On 18.4.1983 this Court granted special leave to appeal and on
F 12.11.92, the Court permitted the petitioner to amend her S.L.P. so as to
challenge the detention order dated 22 September, 1975 made against her
deceased husband. The petitioner did so. Thereafter by an order dated
September 8, 1994, this Court treated the said Civil Appeal as a writ
petition under Article 32 of the Constitution. It has been numbered as writ
G petition 574 of 1994.

Under Sectfon 2(2)(b)(iv) of SAFEMA, proceedings under the said
Act can be taken in case of a person (his relatives and associates) against
whom an order of detention has been made under COFEPOSA and "such
order of detention has not been set aside by a Court of competent juris-
H diction". The respondents say that inasmuch as an order of detention dated
GANGADEVIv. U.0.1. 131
September 22, 1975 was made against Solanki under COFEPOSA and A
because it has not been set aside by a Court of competent jurisdiction, the
proceedings taken against the petitioner (who is a 'relative' of Solanki as
defined in the said Act) ar.e perfectly valid and competent. As against this,
the contention of the petitioner is: Solanki had filed a writ petition chal-
lenging the validity of the aforesaid order of detention in the Bombay High
B
Court. While it was pending, he died. The order made by the High Court
on April 12, 1977 dismissing the writ petition as infructuous, acting upon
and incorrect representation made on behalf of the State that the detenue
has already been released, is a nullity in law. Not only the detenue was
dead long prior to the said order but also because the said order was
induced by and based upon a totally incorrect representation of fact viz., c
that the detenue has already been released. There has been no pronoun-
cement by any court upon the validity of the detention order dated
22.9.1975. The petitioner is entitled to challenge the validity of the
aforesaid detention order because it is now being made a foundation for
forfeiting her properties under SAFEMA. The validity of the said deten- D
tion order was indeed questioned by Solanki himself and unless the chal-
lenge is repelled, it cannot be made a basis for initiating proceedings under
SAFEMA against the petitioner (his wife). It may be well be that the Court
will set it aside, in which case the entire proceedings taken under
SAFEMA against the petitioner will fall to ground, says the petitioner.
E
This aspect has bee]l dealt with by a special Bench of nine Judges of
this Court in Attorney General for India and Others v. Amratlal Prajivandas
and Others, [1994] 5 S.C.C. 54. The decision deals with several aspects
arising under the aforesaid enactments. What is however, relevant herein
is the discussion in paragraphs 35 to 42 (pages 83 to 87). In particular, the F
following holding in para 41 is relevant to the present controversy:

"even if such an order is allowed to be challenged when action under

- SAFEMA is taken, the challenge must be confined to grounds which
were open or available dwing the period of emergency; otherwise
there would be no meaning behind the concluding words in Article
G

358(1) and Article 359(1-A). Hence, we say that a person who did
not choose to challenge such an order of detention 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. In either of the two situations H
132 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A mentioned above, i.e., whether the challenge is made dwing the
period of detention or later when proceedings under SAFEMA are
taken against him, the grounds of challenge and scope of judicial J.
scrutiny would be the same. Failure to challenge the detention
directly when he was detained, precludes him from challenging it
after the cessation of detention, where it is made the basis for
B initiating action under SAFEMA." (·

Now, the \Hit petition filed by Solanki was not decided on merits. It
was dismissed on the basis of an incorrect representation made by the
State. It was an order against a dead person. It is a nullity. Since the said
C order of detention is being made a basis for initiating action under Section
6 of SAFEMA, the petitioner is entitled to challenge it. It cannot be
gainsaid that but for the said order of detention against Solanki, no
proceedings could have been taken against the petitioner (his wife). She
cannot, therefore, be denied the right to challenge the said detention order.
D Of course, it follows from the holding in Amrat Lal Prajivandas that
challenge to the order of detention dated September 22, 1975 (made
against Solanki) has to be examined with reference to the law obtaining as
on the date the said order was made and not with reference to the law
obtaining at any later point of time. Now the question is whether that
should be allowed to be done in the writ petition filed by the petitioner in
E the Delhi High Court (it is really directed against the orders made under
SAFEMA against her) or should it be allowed to be done in the writ
petition (Crl.M.P. 134of1976 on the file of the Bombay High Court) which
was disposed of on the basis of wrong representation and after the death
of the detenue (writ petition or therein). In our opinion the proper course
F is to treat the order dated April 12, 1977 (dismissing the writ petition
Crl.M.P. 134 of 1976 as infructuous) as a nullity and ~o treat the said writ
petition as still pending on the file of the Bombay High Court. The
petitioner shall be allowed to continue the said writ petition which shaU
have to be disposed of now according to law in the light of the observations
made hereinabove and in accordance with law laid down in Amratlal
-
G Prajivandas. We must mention by way of clarification that though in the
ordinary course, the death of a detenue should bring the writ petition
challenging the order of detention to an end, the position here is different
because of the fact that the said order of detention is being made a
foundation for initiating proceedings for forfeiting the petitioner's proper-
H ties on the ground that she is a "relative" of the deceased-detenue. It is in
GANGADEVIv. U.O.I. 133

these peculiar circumstances that we are obliged to adopt the unusual A
course indicated above.

Accordingly the writ petition is disposed of with the following direc-
tion:

(1) The order dated Apfil 12, 1977 made by the Bombay High Court B
dismissing the writ petition (Crl.M.P. 134 of 1976 filed by Shrikrishna
Gopilal Solanki challenging the order of detention dated September 22,
1975 made under Section 3 read with Section 12-A of COFEPOSA) is
treated as a nullity. The said writ petition shall be deemed to be continuing
on the file of the Bombay High Court. It is open to the petitioner to C
continue the said writ petition provided she applies to the Bombay High
Court for permission to come on record in the said writ petition and to
continue it, within two montRs from today. If such an application is mage,
it shall be entertained by the High Court and she shall be allowed to
continue the writ petition. The writ petition shall be disposed of in accord-
ance with law as indicated hereinabove. D

(2) If the petitioner makes an application for continuing the writ
petition as mentioned in direction (1) above, the orders made against her
in SAFEMA shall remain stayed pending disposal of the said writ petition.
In case the writ petition is allowed, it is obvious, the proceedings taken E
against the petitioner under SAFEMA shall stand set aside. In case,
however, the said writ petition is dismissed the said proceedings taken
under SAFEMA shall be given effect to subject of course to any orders of
this Court.

(3) In case the petitioner does not apply to the Bombay High Court F
for continuing the aforesaid writ petition within the period prescribed in
direction (1) above, the orders ma?e against her under SAFEMA shall be
given effect to.

The writ petition is disposed of. There shall be no orders to costs.
G
R.P. Petition disposed of.