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2004 (2) TMI 653 - SC - FEMAWhether 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? 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? Held that - SAFEMA applies when the revocation is based on the report of the Advisory Board. As the factual position noted above goes to show, the revocation was only in terms of Section 11(1)(b) of COFEPOSA. Such revocation when is done by the Central Government as in this case is really unrelated to a report of the Advisory Board. On the factual position, none of the three situations indicated in the first sub-clause of the said proviso are applicable. The inevitable position is, therefore, crystal clear that the proviso to clause (b) of sub-section (2) of Section 2 SAFEMA had no application to the facts of the case as held by the High Court. To that extent the judgment of the High Court is indefensible and is set aside. 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 General s case 1994 (5) TMI 235 - SUPREME COURT . 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 and 2. The view taken in Amritlal Chandmal Jain s case (1998 (4) TMI 530 - SUPREME COURT) and Karimaben K. Bagad s case (1998 (7) TMI 680 - SUPREME COURT OF INDIA) does not call for any further or fresh look or consideration the same being not only just and reasonable but quite in conformity with the basic tenets of Rule of Law but commends for our respectful acceptance, as well - Appeal allowed - 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 concerned.
Issues Involved:
1. Legality of the High Court's decision regarding the order under Section 7 of SAFEMA. 2. Applicability of the first proviso to Clause (b) of sub-section (2) of Section 2 of SAFEMA. 3. Validity of the subsequent writ petitions challenging the order of detention. 4. Impact of concessions made by counsel on the judgment. Detailed Analysis: 1. Legality of the High Court's Decision Regarding the Order Under Section 7 of SAFEMA: The Union of India questioned the legality of the Bombay High Court's judgment which held that the order dated 31.8.1995 under Section 7 of SAFEMA was not sustainable. The High Court referenced orders dated 19.12.1994 under Section 11(1)(b) of COFEPOSA revoking the detention order and an order dated 11.1.1995 from earlier writ petitions. The High Court concluded that the proceedings under SAFEMA became non est due to these orders. 2. Applicability of the First Proviso to Clause (b) of Sub-section (2) of Section 2 of SAFEMA: The Union argued that the first proviso to Clause (b) of sub-section (2) of Section 2 of SAFEMA did not apply as the revocation of the detention order was under Section 11(1)(b) of COFEPOSA, not under Section 8. The proceedings initiated under Section 6(1) of SAFEMA on 12.10.1994 were valid as the detention orders were in force when the proceedings began. The High Court's reliance on the proviso was, therefore, incorrect. 3. Validity of the Subsequent Writ Petitions Challenging the Order of Detention: The Union contended that the respondents could not challenge the legality of the detention order in subsequent writ petitions after the initial writ petitions were disposed of as infructuous. The respondents countered that filing a fresh writ petition was permissible to address the prejudice caused by the SAFEMA proceedings. The Supreme Court referenced the cases of Amritlal Chandmal Jain and Karimaben K. Bagad, which supported the maintainability of subsequent writ petitions. 4. Impact of Concessions Made by Counsel on the Judgment: The Supreme Court noted that any concession made by counsel before the High Court was inconsequential if it was contrary to statutory provisions. The Court emphasized that wrong concessions cannot bind parties when statutory provisions clearly indicate otherwise, referencing the cases of Sanjeev Coke Manufacturing Company and Uptron (India) Ltd. The Court held that the High Court's judgment based on such concessions was indefensible. Conclusion: The Supreme Court set aside the High Court's judgment to the extent that it held the first proviso to Clause (b) of sub-section (2) of Section 2 of SAFEMA applicable. The Court remitted the matter back to the High Court for fresh adjudication on the legality and validity of the detention orders. The High Court was directed to dispose of the writ petitions within six months, maintaining the status quo regarding the properties in question until the writ petitions are resolved. The appeals were allowed to the extent indicated.
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