2012 (12) TMI 1176 - HC - FEMA

Summary

Issues Involved:
1. Challenge to the order of detention dated 11.06.1976 under COFEPOSA.
2. Application of res judicata due to withdrawal of earlier petitions.
3. Legality of proceedings under SAFEMA initiated based on the detention order.

Summary:

1. Challenge to the Order of Detention:
The appellant challenged the dismissal of their Special Civil Application No. 3716 of 1995, which sought to quash the detention order dated 11.06.1976 under COFEPOSA and subsequent proceedings under SAFEMA. The detention order was initially revoked after the emergency was lifted on 21.03.1977, and no challenge was made during its subsistence. The Supreme Court's decision in Attorney General For India vs. Amratlal Prajivandas (1994) 5 SCC 54 was pivotal, stating that if the order of detention was not challenged during its subsistence, it could not be challenged later during SAFEMA proceedings. The High Court upheld this view, emphasizing that the legality and validity of the detention order could not be contested post-revocation if not challenged during its operative period.

2. Application of Res Judicata:
The learned single Judge ruled that the withdrawal of Special Civil Application No. 1276 of 1977 did not bar subsequent petitions on the ground of res judicata. However, the core issue was whether the detention order could be challenged after its revocation. The Court held that since the order was not contested during its effective period, subsequent challenges were impermissible, aligning with the Supreme Court's interpretation in the Attorney General For India case.

3. Legality of Proceedings under SAFEMA:
The appellants argued that the detention order's legality should be assessed on merits during SAFEMA proceedings. They cited various Supreme Court cases, including Competent Authority, Ahmedabad vs. Amritlal Chandmal Jain (1998) 5 SCC 615, which allowed for such challenges if the detention order was not previously adjudicated on merits. However, the Court distinguished these cases, noting that in those instances, the detention orders were challenged during their validity but were later dismissed as infructuous. Since the appellants did not challenge the detention order during its validity, they could not contest it during SAFEMA proceedings.

Conclusion:
The High Court dismissed the Letters Patent Appeal, reinforcing that the detention order dated 11.06.1976 could not be challenged post-revocation as it was not contested during its operative period. The Court imposed exemplary costs of Rs. 25,000 on the appellants for repeatedly delaying proceedings.