UNION OF INDIAversusGHAMANDIRAM KEWALJI GOWANI

A                               UNION OF INDIA
                                         v.
                    GHAMANDIRAM KEWALJI GOWAN!

                              SEPTEMBER 23, 1994
B
                    [G.N. RAY AND FAIZAN UDDIN, JJ.]

            Conservation of Foreign &change and Prevention of Smuggling Ac-
    tivities Act, 1974 :

c        Detention order-Challenge-Death of detenue-Substitution- applica-
  tion filed long after period of limitation-Pleading that the appeal does not
  abate since heirs of deceased were already on record in connected ap-
  peals-Connected appeals arising out of different cause of action-Substitu-
  tion rejected and appeal held abated-Doctrine of representation of the estate
D of a deceased party held inapplicable.

          An order of detention was passed against the respondent under
    Conservation of Foreign Exchange and Prevention of Smuggling Activities
    Act, 1974. In view of the said detention order three notices were issued, one
    against the respondent and two against his sons nnder section 6 of the
E   Smugglars and Foreign Exchange Manipulators (F orefeiture of Property)
    Act, 1976 (SAFEMA). The respondent challenged the detention order
    before the Bombay High Court but died during the pendency of the case
    and the High Court quashed the detention order. No application for
    setting aside the abatement was made.
F
          In the application for substitution, filed after the period of limita-
    tion, it was contended on behalf of the appellant that since the other
    appeals have also been preferred against quashing of notices issued under



                                                                                    ..
    SAFEMA to the sons of respondent and in such appeals, the question of
    the validity of detention order also arises for determination, there is no
G   question of abatement of the instant appeal because in other appeals some
    of the heirs of respondents are already on record. Reliance was placed
    upon the decision in Mahabir Prasad v. !age Ram & Ors., [1991] 3 S.C.R.
    301.

H          Dismissing the appeal, this Court,
                                         58
                                U.0.1. v. G.K. GOW AN!                        59

             HELD : In the Mahabir Prasad's case, the question of abatement of A
       a proceeding was considered where, in the same llrOceeding one of the heirs
....   of a deceased party was already on record. The said decision does not
       reiate 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 other·
                                                                                   B
       wise hopelessly time barred is rejected. Consequently, this appeal abates.
                                                                     [61-8, C, DJ
             Mahabir Prasad v. !age Ram & Ors., (1991) 3 S.CR. 301, held
       inapplicable.

            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                   c
       540 of 1982.

            From the Judgment and order dated 23.2.81 of the Bombay High
       Court in Cr!. Appeal No. 1320/1975.

             S. Rajappa for the Appellant.                                         D
            Anil B. Divan, S. Ganesh, M.A. Rana and Rajiv Tyagi for the
       Respondent.

             The following Order of the Court was delivered :
                                                                                   E
               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 detenue 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 F
         November 1, 1974. Sometime in June, 1975 during the period of emergency
         declared under the Constitution, another detention order was passed
         against the said Ghamandiram. The se~ond detention order was also


 -     . challenged in the Bombay High Court. By an interim order dated March
         10, 1976, the Bombay High Court held that the detenue was entitled to G
         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 detenue was released but the chalienge· to the detention
         order, was pursued and ultimately by the Judgment and Order dated
         February 23, 1981, the Bombay High Court set aside and quashed the
         second detention order.                                                    H
    60                    SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A         The instant appeal arises out of such judgment of the Bombay High
    Court dated February 23, 1881 quashing the second detention order.
    During the pendency of this appeal, the respondent Ghamandirarn died on
    February 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
B   after condonation of delay has, also been made. It may be stated here that
    in view of the said order of detention passed against Gharnandiram, 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
c   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
D
    already on rw:ird. 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 Ghamandirarn in the matter of quashing
    detention order for allowing the application for substitution made long
E   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 Gharnan-
    diram 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.
F
          The learned counsel opposing the prayer for substitution has con-
    tended that the other appeals preferred against some of the heirs of


G
    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 that they being
    close relation of the detenue under COFEPOSA, within the meaning of
                                                                                    -
    SAFEMA, the properties owned by them were also liable to the confis-
    cated under the provisions of SAFEMA. In such circumstances, learned
H   counsel opposing the application for substitution contends that the ques-
                             U.0.1. v. G.K. GOWAN!                           61
    tion of doctrine of representation of the estate of a deceased party as A
    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.

           The learned counsel for the appellant has, however, relied upon the
    decision of this Court in Mahabir Prasad v. !age Ram & Others, (1991] 3        B
    SCR 301, 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, unable to accept such contention. In the
    said decision the qqestion of abatement of a proceeding was considered
    where in the same proceedings, one of the heirs of a deceased party was        C
    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.
                                                                                   D
    CA. Nos. 928/91 & 1198/91

         List the matters on November 8, 1994 as prayed for by the learned
    counsel for the parties.

    T.N.A.                                                   Appeal dismissed.




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