PETITIONER: UNION OF INDIA Vs. RESPONDENT: GHAMANDIRAM KEWALJI GOWANI DATE OF JUDGMENT28/09/1994 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) FAIZAN UDDIN (J) CITATION: 1995 SCC (1) 40 JT 1994 (6) 370 1994 SCALE (4)374 ACT: HEADNOTE: JUDGMENT:
ORDER
1. The respondent Ghamandiram Kewalji Gowani was detained
under Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act (hereinafter referred to as
COFEPOSA) in 1974. The said order of detention was
challenged by the son of the detenu Shri Tej Raj before the
Bombay High Court and after considering the grounds of
detention, the Bombay High Court quashed the detention order
by judgment dated 1-11-1974. Sometime in June 1975 during
the period of emergency declared under the Constitution,
another detention order was passed against the said
Ghamandiram. The second detention order was also challenged
in the Bombay High Court. By an interim order dated 10-3-
1976, the Bombay High Court held that the detenu was
entitled to challenge the grounds for detention and the
petition presented before the High Court for such challenge
was maintainable. On the revocation of the emergency, the
detenu was released but the challenge to the detention
order, was pursued and ultimately by the judgment and order
dated 23-2-1981, the Bombay High Court set aside and quashed
the second detention order.
+ From the Judgment and Order dated 23-2-1981 of the Bombay
High Court in Crl. Appeal No. 1320 of 1975
41
2.The instant appeal arises out of such judgment of the
Bombay High court dated 23-2-1981 quashing the second
detention order. During the pendency of this appeal, the
respondent Ghamandiram died on 2-2-1983. No application for
substitution of the heirs of the legal representatives of
the said deceased respondent Ghamandiram was made within the
period of limitation. No application for setting aside
abatement after condonation of delay has also been made. It
may be stated here that in view of the said order of
detention passed against Ghamandiram, three notices were
issued, one against the deceased Ghamandiram and two against
two sons of deceased under Section 6 of Smugglers and
Foreign Exchange Manipulators (Forfeiture of Property) Act
(hereinafter referred to as SAFEMA). It has been contended
in the application for substitution that since the other
appeals have also been preferred against quashing of such
notices issued under SAFEMA to the sons of Ghamandiram and
in such appeals, the question of the validity of second
detention order also arises for determination, there is no
question of abatement of the instant appeal because in other
appeals some of the heirs of Ghamandiram are already on
record. Such contention has been seriously disputed by the
learned counsel who has entered appearance for the sons of
Ghamandiram in the other appeals by contending that they
cannot be held to be on record of the appeal preferred
against Ghamandiram in the matter of quashing detention
order for allowing the application for substitution made
long after the period of limitation. It may be stated here
that it is not the case of the appellant that the appellant
was not aware of the death of Ghamandiram because such fact
of death was made known and in the application for
substitution it has been stated that such application was
not made earlier because in the connected appeals, the
heirs of Ghamandiram were already on record.
3. The learned counsel opposing the prayer for
substitution has contended that the other appeals preferred
against some of the heirs of Ghamandiram are independent
appeals and they arise out of a different cause of action.
The notices under SAFEMA to sons of Ghamandiram were issued
not in the capacity of their being heirs of Ghamandiram and
holding the properties of Ghamandiram but on the basis of
their being close relations of the detenu under COFEPOSA,
within the meaning of SAFEMA, the properties owned by them
were also liable to be confiscated under the provisions of
SAFEMA. In such circumstances, learned counsel opposing the
application for substitution contends that the question of
doctrine of presentation of the estate of a deceased party
as sought to be raised in support of the application for
substitution does not arise and the application for
substitution being hopelessly time-barred should be
dismissed.
4. The learned counsel for the appellant has, however,
relied upon the decision of this Court in Mahabir Prasad v.
Jage Ram1 for contending that since in the connected
appeals, the heirs of Ghamandiram were already on record,
there was no question of abatement of this appeal. We are,
however,
1 (1971) 1 SCC 265 :(1971) 3 SCR 301
42
unable to accept such contention. In the said decision the
question of abatement of a proceeding was considered where
in the same proceeding, one of the heirs of a deceased party
was already on record. The said decision does not relate to
abatement of a different proceeding which is independent of
the other proceedings where an heir in his personal capacity
is a party. In the aforesaid circumstances, the application
for substitution which is otherwise hopelessly time-barred
is rejected’. Consequently, this appeal abates and is
therefore dismissed.
CA Nos. 928 and 1198 of 1991
5. List the matters on 8-11-1994 as prayed for by the
learned counsel for the parties.