Yogesh Daulat Rai Mehta vs Uoi & Ors.
2008 Latest Caselaw 1005 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P. (CRL) 139/2008 & CRL M.A. 1261-1262/2008

                                   Date of decision : 11.07.2008

YOGESH DAULAT RAI MEHTA                                  ....... Petitioner
                         Through: Mr. Sunil Kumar Verma and
                                  Mr. B.S. Rajesh, Advocates



                                Versus

UOI & ORS.                                             ....... Respondent

Through: Mr. Najmi Waziri, Advocate

CORAM :-

HON'BLE MR. JUSTICE VIKRAMAJIT SEN

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. Whether reporters of Local papers may be allowed to see the judgment?

     2. To be referred to the reporter or not?            Yes

     3. Whether the judgment should be reported           Yes
        in the Digest?

RAJIV SAHAI ENDLAW, J

1. The challenge in this petition, got listed for the first time

on 1st February, 2008, is to the order dated 3rd February, 1997 of

the detention of the Petitioner under Section 3 of the Conservation

of Foreign Exchange and Prevention of Smuggling Activities Act,

1974 (COFEPOSA). The petition has been filed after eleven years of

the order. It is the case in the petition itself that the Petitioner had

earlier preferred a petition challenging the same order of detention

in this court being Criminal Writ Petition No. 566/1997 which came

up for hearing on 18th July, 2002 when the following order was

made.

"Learned counsel for the petitioner states that the petition, as such, has become infructuous. The petitioner has since been released.

Dismissed as withdrawn."

It is contended that the Petitioner was not in the knowledge of the

order dated 18th July 2002 and whenever the Petitioner enquired

from his counsel about the status of the said writ petition, he was

informed that the writ petition had been admitted and was pending

for final hearing.

2. The petition further states that in view of the detention

order under COFEPOSA having been passed, show cause notice

was issued to the Petitioner by the Competent Authority under

Section 6 (1) of Smugglers and Foreign Exchange Manipulators

(Forfeiture of Property) Act, 1976 (SAFEMA) covering the

Petitioner under Section 2 (2) (b) of SAFEMA. From the record we

find that the said show cause notices under SAFEMA were issued

to the Petitioner on 25th April, 1997 and 27th February, 1998 and

the Petitioner had been appearing before the office of the

Competent Authority, SAFEMA in pursuance to the said show

cause notices from 9th July, 1999 onwards. We further find from the

record that it was inter alia the case of the Petitioner before the

Competent Authority, SAFEMA that since the detention order on

the basis of which proceedings under SAFEMA had been initiated,

was under challenge in Criminal Writ Petition No. 566/1997, the

proceedings under SAFEMA may be kept pending. We find from the order dated 22nd October, 2007 of the Competent Authority,

SAFEMA that the Petitioner appeared before the Competent

Authority, SAFEMA inter alia on 11th August, 2003 and 5th

September, 2003. The Competent Authority has in the order dated

22nd October, 2007 noted that in spite of the order dated 18th July,

2002 of dismissal of the writ petition as withdrawn, the Petitioner

did not hesitate to give a wrong picture about the status of the writ

petition and somehow managed to keep the proceedings before the

Competent Authority, SAFEMA pending till 2007.

3. The Competent Authority, SAFEMA as aforesaid,

ultimately, vide order dated 22nd October, 2007 declared the

properties to have been illegally acquired in terms of Section

3(1)(c) of SAFEMA and ordered the forfeiture of the properties.

The Petitioner claims to have preferred an appeal to the Appellate

Tribunal for Forfeited Property.

4. The Petitioner has sought to justify the maintainability of

the present petition in spite of dismissal as withdrawn of the

earlier petition challenging the same order on the basis of the

judgments of the Apex court in Competent Authority

Ahmedabad v Amrutlal Chandmal Jain & Ors [1998 (5) SCC

615] and Union of India and Others v Mohanlal Likumal

Punjabi and Others [(2004) 3 SCC 628] and Karimaben K

Bagad v State of Gujrat [1998 (6) SCC 264].

5. On merits the detention order is challenged on the grounds

(i) that the detention order was issued after about one and a half

year of the incident, (ii) that there was no ground for the detention

order and no proof that the Petitioner was at the time of the

issuance of the detention order involved in the activity for reason

of which the detention order was issued, (iii) that the order had

been issued mechanically, (iv) that because there was no evidence

that the Petitioner had indulged in any illegal transaction relating

to foreign exchange, (v) because the detention order against the

main accused Shri Harshad P. Mehta had been revoked under

Section 11 of the Act and a co-accused Shri Dilip Doshi was

ordered to be released by the Advisory Board., (vi) that the case

against the petitioner was of abetting the said Harshad P. Mehta

and Dilip Doshi and not of any active participation, (vii) that the

relevant material had not been served on the petitioner.

6. The counsel for the Respondents has urged that the

petition is not maintainable for the reason of delay and latches,

having been preferred after eleven years of the detention order

and is liable to be dismissed on this ground alone.

7. The Apex court in Attorney General for India and

Others v Amratlal Prajivandas and Others [(1994) 5 SCC 54)]

in Para 41 of the judgment has held:

" 41. If it is normal order of detention [not governed by Section 12-A nor protected by an order under Article 359 (1) suspending the enforcement of Article 22] and if the detenu does not challenge it when he was deprived of his liberty, or challenges it unsuccessfully, there is no reason why he should be allowed to challenge it when action under SAFEMA is taken against him - for action under SAFEMA is not automatic upon the fact of detention but only the starting point.

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 mentioned above, i.e., whether the challenge is made during the period of detention or later when proceedings under SAFEMA are taken against him, the grounds of challenge and scope of judicial 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 initiating action under SAFEMA."

Thus the law laid down by the nine judge Bench of the Apex court

in Amratlal Prajivandas is that the detention order cannot be

challenged when action under SAFEMA is taken, if the same was

not challenged earlier or if the earlier challenge was unsuccessful.

8. In the present case the detention order which is now

challenged was in fact challenged earlier but as aforesaid the writ

petition was withdrawn on 18th July, 2002. Not only so, we find that

the Petitioner in 2007, perhaps after the order dated 22 nd October,

2007 of the Competent Authority, SAFEMA applied for revival of

the earlier writ petition challenging the detention order. The said application was also dismissed. The said order attained finality.

With that, the position is unassailable that the earlier petition

challenging the detention order was dismissed as withdrawn, even

if for the reason of the counsel for the Petitioner being of the view

that the same had become infructuous. The question is, whether

the Petitioner can have a second chance/second turn?

9. As far as the reliance by the Petitioner on Amrutlal

Chandmal Jain and Mohanlal Likumal Punjabi is concerned, a

Division Bench of this court speaking through one of us (Sen, J.), in

Criminal Writ Petition No. 509/1996, Narender Kumar v UOI &

Ors., decided on 2nd May, 2008, has already held that

notwithstanding nine judge decision in Amratlal Prajivandas, the

Apex court in Amrutlal Chandmal Jain and Mohanlal Likumal

Punjabi allowed the detention order to be challenged because the

show cause notice under SAFEMA in both the cases came to be

issued after the disposal of the writ petitions as infructuous. The

Division Bench thus, notwithstanding Amrutlal Chandmal Jain

and Mohanlal Likumal Punjabi held the petitions in which show

cause notices under SAFEMA had been issued prior to withdrawal

of petitions, challenging the detention order to be not

maintainable. Same was the factual position in Karimaben K

Bagad; there also, the show cause notice under SAFEMA was

received after the withdrawal/disposal as infructuous of the writ

petition challenging detention order.

10. The reasoning for the view taken in Mohanlal Likumal

Punjabi in spite of the authoritative law laid down by the nine

judge Bench in Amratlal Prajivandas is borne out from para 17 of

the judgment as under:

"17. In both these cases, it was held that the subsequent writ petition is maintainable and it should rightly be so having regard to the consequential action taken at any rate under the SAFEMA. Otherwise it would amount to the Government concerned being allowed/enabled by their action to disable and denude the person aggrieved from questioning the very applicability of the SAFEMA to him or his properties dehors his other rights to challenge the same otherwise on merits as well."

What appears to have prevailed in the facts of the said case was

that, if on the date of the withdrawal of the petition challenging the

detention order, SAFEMA had not been invoked, the department

would get an unfair advantage if the second petition was not held

maintainable.

11. However, the facts in the present case are entirely

different. The show cause notice under SAFEMA was issued soon

after the detention order and the proceedings under SAFEMA were

pending throughout. The Petitioner was contesting the validity of

detention order and proceedings under SAFEMA side by side. The

Petitioner was thus well aware that the challenge to the detention

order already made in the earlier writ petition was relevant vis-a-

vis the proceedings under SAFEMA also. Notwithstanding that, the

Petitioner withdrew the earlier petition as infructuous. The law does not provide a second chance/second round and the present

petition is not maintainable on the ground of resjudicata and

constructive resjudicata also.

12. The Apex court in Avinash Nagra v Navodaya Vidyalaya

Samiti and Others [(1997) 2 SCC 534], Upadhyay & Co. v State

of U.P. and Others (AIR 1999 SC 509) and Sarguja Transport

Service v State Transport Appellate Tribunal, Gwalior and

Others (AIR 1987 SC 88) has laid down that the principles of 23

Rule 1 of C.P.C. apply to writs also and that withdrawal of a writ

petition tantamounts to abandonment of the cause of action relied

on in the writ petition and the second writ petition in respect of the

same subject matter is not maintainable. No question of personal

liberty is involved at the present.

13. The Petitioner set up a case of the earlier petition having

been withdrawn by his advocate without his knowledge. Though

the said matter was also relevant only in the application filed by

the Petitioner for revival of the earlier petition and which was

unsuccessful but we may note that the said version of the

Petitioner does not appear to be correct. No particulars

whatsoever have been stated as to what action, if any, was taken

by the Petitioner against the advocate engaged by him in the

earlier petition, if the withdrawal of the earlier petition was

without the knowledge of the Petitioner. It is not believable that when the Petitioner at the same time was contesting the

proceedings under SAFEMA, the Petitioner would not be in touch

with the advocate conducting the proceedings challenging the

detention order and which proceedings would have a vital bearing

on the proceedings under SAFEMA also. We feel that the Petitioner

is merely blaming his advocate, to avail of a second chance before

this court. Had the Petitioner really been aggrieved by any action

of his advocate, he would have taken action against the advocate

and we would then have had before us the version of the advocate

also. However, no particulars whatsoever in this regard have been

stated. The Apex court in Salil Dutta v T.M. & M.C. Private Ltd,

Manu/SC/0473/1993 has held that "The advocate is the agent of the

party. His acts and statements, made within the limits of authority

given to him, are the acts and statements of the principal i.e. the

party who engaged him." The Apex court further laid down " that

in certain situations, the Court may, in the interest of justice, set

aside a dismissal order or an ex- parte decree notwithstanding the

negligence and/or misdemeanour of the advocate where it finds

that the client was an innocent litigant but there is no such

absolute rule that a party can disown its advocate at any time and

seek relief." The Apex court laid down "No such absolute immunity

can be recognised. Such an absolute rule would make the working

of the system extremely difficult."

14. This court speaking through one of us (Sen, J.) has applied

the aforesaid principle laid down by the Apex court in Naimat Kaur Anand & Ors. V M/s Decon Company [82 (1999) DLT 389].

The same principles were also applied in Gloria Chemicals v R.K.

Cables and Ors. (AIR 1988 Delhi 213), New Delhi Municipal

Council and Ors. v Sohan Lal [122 (2005) DLT 653] and New

Bank of India v M/s. Marvels (India) [ 93 (2001) DLT 558] and

the blame on the advocate was not accepted as a ground when in

the facts and circumstances, no negligence or misdemeanour on

the part of the advocate and lack of due negligence on the part of

the party was found. In the present case also, no misdemeanour on

the part of the advocate has been borne out from the record.

15. We also find merit in the contention of the counsel for the

Respondents that the petition is also barred on the principles of

latches, waiver and acquiescence.

16. Since the petition is found to be not maintainable, we are

not returning any finding on the merits of the detention order. The

petition is accordingly dismissed.

RAJIV SAHAI ENDLAW (JUDGE)

VIKRAMAJIT SEN (JUDGE) July 11, 2008 smp