2015 (2) TMI 124 - HC - FEMA

Validity of detention order - Forfeiture of property under SAFEMA - Detention notice not served - Violation of principle of natural justice - Held that - Shri Sarin was never served with the detention order, nor even made aware of it ever, during the time it was in force. The respondents were unable to show any material to say that they tried to serve it upon him, and that he could have in any manner known of its existence, in order to challenge it. In these circumstances, it was impossible for him to impugn it, for the period July 1975 to March 1977. Once the Emergency was revoked, and the detention order suffered a similar fate, there was no manner for him again to challenge the detention order as it had no consequence. Another very important aspect is that when the Emergency was in force, individuals whose personal liberty was forfeited under preventive detention laws, such as COFEPOSA, were, by reason of the Proclamation of Emergency, prevented from asserting their Fundamental Rights. Initially nine High Courts held that notwithstanding this position, orders of detention could be challenged under Article 226 of the Constitution of India. However, the Supreme Court held that such petitions were not maintainable; effectively barring even the writ remedy to those aggrieved against detention orders, in A.D.M. Jabalpur v Shiv Kant Shukla 1976 (4) TMI 211 - SUPREME COURT . The submission of the respondents that the revocation order in the present case was not under Section 12-A, but under Section 11 is of not much consequence. The only power of revocation which could have been sought recourse to, by the Central Government, under COFEPOSA, during Emergency, in respect of orders under Section 12-A, was under Section 12-A (3) after review and recommendation to release the detenu. That class of detention orders too stood excluded by virtue of Section 2 (2) (b) third proviso; however, the first category, i.e. those detention orders that had not been revoked before cessation of Emergency, could have been revoked only under Section 11 of COFEPOSA. - revocation of the detention order, in the present case, clearly fell within third proviso to Section 2 (2) (b) and was thus excluded from exercise of jurisdiction under SAFEMA. The writ petition has to consequently succeed; the orders of the competent and appellate authority are hereby quashed. - Decided in favour of appellant.

Summary

Issues Involved:
1. Validity of the detention order under COFEPOSA.
2. Validity of the proceedings and orders under SAFEMA.
3. Impact of the revocation of the detention order on SAFEMA applicability.

Detailed Analysis:

1. Validity of the detention order under COFEPOSA:
The petitioner sought directions to call for records relevant to the detention order dated 12.07.1975 under COFEPOSA. The order was issued but never executed, and the detainee was never detained. The respondents later revealed that the detention order had been revoked on 21.03.1977, and the file pertaining to the detention order was untraceable. The court noted that the detention order was made during the Emergency period (25.06.1975 to 21.03.1977) and was revoked on the same day the Emergency ended.

2. Validity of the proceedings and orders under SAFEMA:
The petitioner also challenged the proceedings initiated and orders made under SAFEMA. The competent authority under SAFEMA issued a notice to Shri H.K. Sarin, asking him to disclose his source of income for the properties listed. Despite his representations, an order forfeiting several properties was issued on 05.08.1998. The petitioner argued that since the detention order was never executed, the consequential action under SAFEMA was unsustainable. The respondents contended that the forfeiture orders were valid as they were preceded by a show cause notice.

3. Impact of the revocation of the detention order on SAFEMA applicability:
The petitioner contended that the revocation of the detention order under Section 12A of COFEPOSA meant that proceedings under SAFEMA could not have been initiated. The court examined the relevant statutory provisions, including Section 2 of SAFEMA and Sections 9, 11, and 12A of COFEPOSA. It was highlighted that detention orders under Section 12A were made under extraordinary circumstances during the Emergency, overriding other statutory safeguards. The court noted that the detention order in question was made under Section 12A and was revoked by operation of law upon the cessation of the Emergency. The court concluded that the revocation of the detention order fell within the third proviso to Section 2(2)(b) of SAFEMA, excluding its operation.

Conclusion:
The court held that the revocation of the detention order clearly fell within the third proviso to Section 2(2)(b) of SAFEMA, thus excluding the exercise of jurisdiction under SAFEMA. Consequently, the orders of the competent and appellate authority under SAFEMA were quashed, and the writ petition was allowed without any order as to costs.