Gujarat High Court
Mer Nagabhai Chhaganbhai Dedara vs Competent Authority Safema/Ndps, ... on 18 July, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/MCA/2433/2024 ORDER DATED: 18/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR REVIEW) NO. 2433 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10076 of 2011
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MER NAGABHAI CHHAGANBHAI DEDARA & ORS.
Versus
COMPETENT AUTHORITY SAFEMA/NDPS, MUMBAI & ORS.
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Appearance:
MR SHIRISH SANJANWALA, SENIOR COUNSEL ASSISTED BY MR DILIP
L KANOJIYA(3691) for the Applicant(s) No. 1,2,2.1,2.2,2.3
GOVERNMENT PLEADER for the Opponent(s) No. 3,4
MR HARSHEEL D SHUKLA(6158) for the Opponent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 18/07/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. We have heard learned Senior Counsel Mr. Shirish
Sanjanwala assisted by Mr. Dilip Kanojiya, learned counsel
for the applicants and Mr. Harsheel Shukla, learned
Standing Counsel appearing for and on behalf of the
respondent authority.
2. By this application, the original petitioners of Special
Civil Application No. 10076 of 2011 is seeking review of
the order dated 30.08.2024 passed by this Court,
whereby, Special Civil Application No. 10076 of 2011 with
Civil Application (for direction) No. 1 of 2018 was
dismissed on merits. While dismissing the Special Civil
Application, we have also disposed of Civil Application (for
direction) No. 1 of 2018, as not survived and same came
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to be disposed of with the main matter. In Civil Application
No. 1 of 2018, direction was sought to hand over
documents so that petitioner could challenge the order of
detention, allegedly passed against one Jaku Kara under
the provisions of COFEPOSA. While admitting the said Civil
Application at relevant time, order was passed to the
effect that, "let it be heard along with the main matter." It
is in this background facts, being aggrieved with the
disposal of the Civil Application, the original petitioners
have preferred this Review Application.
3. The facts and circumstances giving rise to file this
Review Application are as under:
(1) The applicants by invoking Article 226 of the
Constitution of India, have challenged the order dated
13.09.1977 and 20.09.1977 passed by the Competent
Authority under the provisions of SAFEMA (Smugglers
and Foreign Exchange Manipulators (Forfeiture of
Property) Act, 1976. The authority had passed the
order of forfeiture with respect to agricultural land
being survey No. 26, admeasuring 18 acres at
Village : Sodsala, Jamkhambhalia, State of Gujarat,
against one Sale Mohd. Kara, as the said property
acquired from the proceeds of smuggling activities of
one Jaku Kara, who happened to be the brother of
Sale Mohd. In the proceedings, Sale Mohd. took a
stand that, the property was purchased in the year
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1971 by him from his own source of income. The
respondent authority did not consider the stand of
Sale Mohd., and by reasoned order dated 13.09.1977,
forfeited to the Central Government the said
agricultural land and wrote a letter to the concerned
Collector directing him to take possession. The said
order carried by Sale Mohd. to the appellate Tribunal
and tribunal after hearing the parties, confirmed the
order of forfeiture and dismissed the appeal. Despite
of order of forfeiture, Sale Mohd. by registered sale
deed dated 01.04.1998, sold the agricultural land to
the petitioners i.e. Mer Nagabhai Odedara and Mer
Lilabhai Odedara. The purchasers i.e. petitioners by
filing writ petition (Special Civil Application No. 10076
of 2011), had challenged the legality of the forfeiture
order dated 13.09.1977.
(2) After hearing the parties, this Court though it fit
to dismiss the Special Civil Application and
accordingly, it has been dismissed on 30.08.2024, by
reasoned order. While dismissing the Special Civil
Application, we have observed that, "the petitioners
have purchased the property after notice of forfeiture
and therefore, no protection is available to them to
prove that they are transferee in good faith for
adequate consideration and in view of Section 11 of
the SAFEMA, no title came to be vested in the
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purchasers by virtue of sale deeds, as the vendors
could not have transferred the property after the
service of notice under Section 6(1) of the SAFEMA
and thus, the petitioners cannot get the benefit of
Section 2(2)(e) of the SAFEMA and when they are not
entitled to get the benefits of protection, the plea
with regard to valid order of detention and non-
application of provisions of SAFEMA, does not require
examination. This Court has further observed that, "in
view of the dismissal of the main matter, the Civil
Application No. 1 of 2018 does not survive and
accordingly same is disposed of as not survive.
(3) Being aggrieved and dissatisfied with the
disposal of Civil Application No. 1 of 2018, the
petitioners have preferred the Review Application.
4. Mr. Shirish Sanjanwala, learned Senior Counsel has
submitted that, the applicants - original petitioners have
all the right to challenge the order of detention of Jaku
Kara, as the proceedings of SAFEMA were being initiated
on the basis of detention order passed against Jaku Kara.
That in order to challenge the detention order, documents
sought from the authority are necessary, as without the
documents, the petitioners could not have amended the
prayer of petition to challenge the order of detention.
That, the disposal of Civil Application without considering
the merits and necessity of documents has defeated the
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valuable Constitutional right of the petitioners to challenge
the detention order and therefore, there is error apparent
on the face of the record and same may be considered. In
such circumstances as referred above, learned Senior
counsel prayed that the order passed in Civil Application
may kindly be reviewed and the said Civil Application may
be decided on merits, after giving opportunities to the
parties. Placing reliance on the judgment of Board of
Control for Cricket in India vs. Netaji Cricket Club (2005) 4
SCC 741, it was contended that, the petitioner is brought
within the ambit of SAFEMA because of detention order
passed against Jaku Kara, and on the basis of the said
order, the proceedings of forfeiture were being initiated
against the petitioner which necessitated to challenge the
detention order and in that premises, the Civil Application
No.1 of 2018 came to be filed for substantial relief,
however, while disposing the main matter, the civil
application without considering the aspect as referred
above, summarily disposed of which can be said to be a
mistake or error apparent on face of record and having
regard to the right of the petitioner, it can be said to be a
sufficient ground for entertaining review application.
5. On the other hand, vehemently opposing the review
application, Mr. Harsheel Shukla submitted that, the
petitioners should have challenged the dismissal order
dated 30.08.2024, which they do not do it. It was
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submitted that, once the order is passed, it cannot be
altered or changed and review of such order must be
subject to grounds prescribed under the Act and it cannot
be lightly interfered with as the scope and powers of
Review is very limited and it cannot be allowed to be an
Appeal in disguise. So far as merit is concerned, it was
submitted that, the case of the petitioners as observed by
this Court, do not fall under Section 2(2)(e) of the SAFEMA
and protection as prescribed, cannot be available to the
petitioners. That the order of the Tribunal forfeiture was
not challenged by Sale Mohd., nor detention order came to
be challenged by Jaku Kara or his brother. In such
circumstances, while dismissing the Civil Application, as
not survived, this Court has not committed any error of
law and in absence of any ground to challenge the order
under the provisions of the CPC, this Review Application is
meritless and same is required to be dismissed with costs.
6. Having considered the grounds raised in the petition
for review of the order and submissions advanced by
learned counsel for the parties and on careful provisions of
the order of review, the issue arise as to whether the case
is made out for review of the order dated 30.08.2024
passed in Civil Application No. 1 of 2018 with SCA No.
10076 of 2011.
7. Before adverting to the submissions, the prayer
made in Civil Application No. 1 of 2018 and objections filed
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by the respondent authority required to be referred for
adjudication of the application.
(1) In Civil Application No. 1 of 2018, the petitioners have
sought following documents from the respondent
authorities.
(i) the detention order passed against Suleman Kara;
(ii) the ground of detention;
(iii) the copy of detention passed against Jaku Kara,
(iv) the grounds of detention of Jaku kara.
(2) The prayer in Civil Application was made to the effect
that, the Court may direct the respondent competent
authority to supply the documents mentioned in para-2 of
the application, so that the main matter can be proceed
on the next date of hearing.
(3) The respondent authority objected the application No.
1 of 2018, by filing affidavit in reply. The Inspecting
Officer, S.V. Majmudar in the affidavit in reply, inter-alia,
stated as under :
(i) the applicant has no locus to seek any documents
and the application is nothing but abuse of process of
law;
(ii) The applicant is not at all party to the detention
proceedings as well as the SAFEMA forfeiture
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proceedings and the documents sought are not at all
necessary for final adjudication of the main matter.
The documents are of the year 1974 and it pertains
to detenue Jaku Kara, who has never challenged the
validity of said order. The forfeiture order has
attained the finality in the year 1978 and therefore
the applicant being a third part has no locus to ask
for production of documents.
8. Before that, it would be profitable to have cursory
view on the settled law with respect to scope of review.
The procedural aspects and grounds for review is
governed by Section 114 and Order - XLVII of the Code of
Civil Procedure. This mechanism allows a court to
reconsider its own judgment or order under specific
circumstances. The main objective of a review is to correct
errors, mistakes or omissions that are apparent on the
face of record or to consider new and important evidence
that was not available despite due diligence at the time of
proceedings. Section 114 empowers a Court to review its
order, if the condition precedent laid down therein are
satisfied. Order 47 Rule 1 CPC provides for filing an
application for review. The Supreme Court in its various
judgments time and again held and observed that, a
review has limited purpose and cannot be allowed to be
an appeal in disguise and has to be strictly confined to the
scope and ambit of Order 47 Rule 1. In the judgment
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referred by the petitioner side (Board of Control for Cricket
in India) (supra), the Supreme Court while interpreting the
scope of review, has held that, the substantive provision
of law does not prescribe any limitation on the power of
the court except those which are expressly provided in
Section 114 CPC in terms whereof it is empowered to
make such order as it thinks fit. While expanding the
scope, the Supreme Court has held that, the application
for review would be maintainable not only upon discovery
of new and important piece of evidence or when there
exists an error apparent on face of record, but, also if the
same is necessitated on account of some mistake or for
any other "sufficient reason". What would constitute
sufficient reason would depend on the facts and
circumstances of the case. The words "sufficient reason"
in Order 47 Rule 1 CPC are wide enough to include a
misconception of facts or law by a court or even an
advocate and the application for review may be
necessitated by invoking the doctrine "actus curiae
neminem gravabit".
9. In light of the settled position of law and applying the
same to the facts of the present case, now we advert to
the submissions advanced by the respective parties.
10. We have perused the case records, pleadings and
proceedings of Special Civil Application No.10076 of 2011.
It emerges from the record that, petition challenging the
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order of forfeiture and consequential order of directing the
Collector to attach the property was filed on 29.07.2011.
At the time of admission of the petition, stay against the
execution of the orders, pending the petition, was passed
in favour of the petitioner. The petition thereafter,
disposed of on 30.08.2024. In other words, since 2011 to
2024, the petitioner neither specifically pleaded and
claimed the relief with respect to detention order passed
against the Jaku Kara. It is relevant to note that, in the
year of 2018, the petitioner filed an application being Civil
Application No.1 of 2018, seeking documents from the
respondent authority so as to enable him to challenge the
detention order. The said application was ordered to be
kept with the main application. In such circumstances, the
petitioner who had challenged the forfeiture order before
the tribunal, was having all knowledge with him about
passing of the detention order. The petitioner could have
get it from the respondent authority or the tribunal. In
such circumstances, inference can be drawn that, only
with a view to delay the matter, Civil Application No.1 of
2018 was being filed.
11. So far merits of this application is concerned, the
main petition challenging the proceedings of forfeiture
under the SAFEMA, came to be dismissed mainly on the
ground that, the applicant is not entitled to get the benefit
of Section 2(ii)(e) of SAFEMA and second ground was the
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seller Sale Mohd. after the order of forfeiture, was not
having right or title to sell the said land which is subject
matter of forfeiture and on this premise, the main petition
came to be dismissed and so far as civil application for
claiming documents is concerned, we have disposed of
observing that, when the petitioners are not legally
entitled to get benefit of the protection, the plea with
regard to valid order of detention and non-application of
provisions of SAFEMA, does not require to examine and
accordingly, the civil application was disposed of as not
survive.
12. In view of the findings recorded in the main matter
on merits and the reasons assigned for disposal of civil
application, we do not find any error apparent on face of
record or mistake while disposing the civil application and
the points raised in the review application for review of
the order, would not constitute sufficient reason in the
facts of the present case and therefore, the review
application is without merits and same deserves to be
dismissed. Accordingly, the review application stands
dismissed. Notice is discharged.
(ILESH J. VORA,J)
(VIMAL K. VYAS, J)
TAUSIF SAIYED
