Gujarat High Court
Manharlal Ratilal Tailor vs Competent Authority Under Safem And ... on 7 October, 1996
Equivalent citations: 1997CRILJ1872, (1997)2GLR239
ORDER M.R. Calla, J.
1. Rule. Mr. Jayant Patel waives service of Rule on behalf of respondent Nos. 1 and 4. With the consent of the parties these matters are taken up for final hearing today.
2. These two petitions are based on identical fact situation involving common questions of law and hence both are decided by this common Order.
3. These two petitions have been filed by the relatives of a COFEPOS A detenu against whom proceedings were taken under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as 'SAFEM Act'). Concerned Competent Authority under the SAFEM Act had passed the orders with regard to the present petitioners in the proceedings under SAFEM Act and the petitioners in both these petitions had lost their Appeal provided under SAFEM Act. Ultimately, the orders by the Appellate Authority under SAFEM Act were passed against the petitioners on 17-6-83. At that time several petitions challenging the validity of the provisions of COFEPOSA and SAFEM Act has been filed before the Supreme Court as well as this Court on diverse grounds challenging the orders under the respective Acts and the present petitioners had also filed two Special Civil Applications before this Court challenging the orders dated 17-6-83 passed by the Appellate Authority as also the validity of certain provisions of the COFEPOSA and SAFEM Act.
4. The petitioner in Special Civil Application No. 6897/96 had filed Special Civil Application No. 3469/83 and the petitioner in Special Civil Application No. 6899/96 had filed Special Civil Application No. 3472/83 and both these petitions were rejected by Division Bench of this Court on 9-8-94 on the basis of the judgment rendered by the Supreme Court in the case of Attorney General for India v. Amratlal Prajivandas reported in (1994) 3 JT (SC) 583 : AIR 1994 SC 2179. The orders dated 9-8-94 passed by the Division Bench of this Court reads as under :
"In view of the decision of the Supreme Court in the case of Attorney General of India v. Amratlal Prajivandas reported in Judgment Today, (1994) 3 JT (SC) 583 : (AIR 1994 SC 2179) this petition is dismissed."
5. The present petitions were filed on 9-9-96 and in both these petitions notices were issued on 10-9-96 and the same were made returnable on 18-9-96 and on 18-9-96 interim orders were also passed to maintain status quo with regard to the possession. The affidavits-in-reply dated 24-9-96 have been filed on behalf of the respondent No. 1 in both these matters.
6. When the matter came up before this Court today Mr. Jayant Patel, learned Addl. Standing Counsel for Union of India, who is appearing in these cases for respondent Nos. 1 and 4, raised a preliminary objection at the very threshold and submitted that these petitions cannot be entertained because these very petitioners had earlier filed Special Civil Applications and the same had been rejected by this Court. Along with the affidavits-in-reply the copies of the earlier Special Civil Application Nos. 3469/83 and 3472/83 have been filed as also the copies of the orders passed by the High Court rejecting these petitions and Mr. Patel has referred to internal page 24A of the Special Civil Application No. 3469/83 para 15 and the prayer which was made in para 21(E) of Special Civil Application No. 3469/83 as also to internal page 24A of the Special Civil Application No. 3472/83 para 15 and the prayer which was made in para 21(G) of the Special Civil Application No. 3472/83. The contents of para l5 and para 2 l(E) of Special Civil Application No. 3469/83 and the contents of para 15 and para 21(G) of Special Civil Application No. 3472/83 are reproduced as under :
"Special Civil Application No. 3469/83.
15. The petitioner submits that the orders of the Competent Authority and the Tribunal are also bad in law, illegal, without jurisdiction and in non-application of mind on the following grounds :
1. That the Tribunal erroneously came to the conclusion that the Angadia business is illegal and, therefore, the income earned from the said business and invested in purchase of the immoveable property would result in forfeiture of the property.
2. That the Competent Authority and the Tribunal failed to see that the petitioner had filed income-tax returns from time to time which were accepted by the Income-tax Officer and there was no reason why the findings of the Income-tax Officer should have been rejected by the Competent Authority or the Tribunal and, therefore, the entire approach was unreasonable and bad in law.
3. That once the Income-tax officer accepts the case of the petitioner that the income earned by the petitioner was as a result of his business as Angadia and when the returns were filed before the Income-tax Officer for those years, though belated, there was no ground for the competent authority and the Tribunal to disbelieve the said facts in a proceeding which is clearly punitive in character, in absence of any evidence produced by the Competent Authority that the property was acquired by the petitioner from illegal income. Para 21(E) That this Hon'ble Court may be pleased to issue a writ of certiorari or a writ in the nature of Certiorari or any other appropriate writ, direction or order under Article 226 of the Constitution of India, calling for the record and proceedings pertaining to the petitioner's ease before the second respondent-Competent Authority who had issued the impugned notice and order and quashing the said notice dated November 1978 and the order dated 28-8-1982 and also quashing the order of the third respondent-Tribunal dated 17-6-1983;
Special Civil Application No. 3472/83
15. The petitioners submit that the orders of the Competent Authority dated 22-10-1980 and the Tribunal dated 17-6-1983 are also bad in law, illegal and without jurisdiction on the following grounds :--
(1) That the authorities failed to see that the said property was claimed by the second petitioner to be belonging to him and that he had shown the income from the said property in his income-tax returns and the same was accepted by the Income-tax Officer from year to year and that, therefore, it was his property and he was not liable to be proceeded against under the SAFEM Act.
(2) That the Tribunal failed to see that the Competent Authority had sought to forfeit the property as belonging to the first petitioner and had given her an option of paying a fine of Rs. 7200/- if the for feiture was to be avoided. There was clearly, therefore, an order against the first petitioner and that she was clearly an aggrieved person who was entitled to file the appeal before the third respondent Tribunal and the appeal was, therefore, competent. The Tribunal, therefore, ought to have disposed of the appeal on merits with regard to the claim of the first petitioner that the properly was not liable to be forfeited, though it was her property and alternatively, on the ground that it was not her property but belonged to the second petitioner.
(3) That the approach of the Tribunal is extremely technical in a matter of this character and the Tribunal erred in not deciding the disputes on merits in this case.
21(G) That this Hon'ble Court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Articles 226 and 227 of the Constitution of India, calling for the record and proceedings pertaining to the petitioners case before the second respondent, competent authority who has issued the impugned notice and order and quashing the said notice dated November, 1978 and the order dated 22-10-1980, and also quashing the order of the third respondent-Tribunal dated 17-6-1983."
Mr. Patel submitted that those Special Civil Applications containing grounds and prayers as aforesaid were rejected earlier by Division Bench of this Court. Now it was not open for the petitioners to claim same relief through the present petitions, which have been filed in this Court on 9-9-96 and his contention is that these petitions cannot be entertained in view of the principles of constructive res judicata and it has also been submitted that there is no reasonable explanation for the period of 2 years i.e. after 9-8-94 to the date September, 1996 when present petitions were filed. The question with regard to the applicability of principles of constructive res judicata on writ proceedings had been considered by the Supreme Court and our High Court in the following decisions :
(i) AIR 1986 SC 391, Forward Construction Co. v. Prabhat Mandal.
(ii) AIR 1990 SC 1607, Direct Recruit Class II Engg. Officers' Assocn. v. State of Maharashtra.
(iii) (1989) 2 Guj LH 152, Gujarat Sachivalaya Staff Assn. v. State of Gujarat.
(iv) AIR 1978 Raj 184, Hemraj v. I. T. Recovery Officer.
(v) (1996) 2 Guj LR 803 (FB), Bhanubhai N. Patel v. State of Gujarat.
(vi) (1996) 1 Guj LH 433, Bhagwandas D. Tandel v. S.N. Sinha.
7. Mr. Kaji appearing on behalf of the petitioners has submitted that the order dated 9-8-94 had been passed by the Division Bench as a common order whereby several petitions had been disposed of on the same date on the basis of the judgment, which had been rendered by the Supreme Court in the case of Attorney General for India v. Amratlal Prajivandas, (AIR 1994 SC 2179) (supra) and at that time the arguments were made only on the question of the validity of the provisions of COFEPOSA and SAFEM Act and in fact the prayers against the for feiture of the property in the proceedings under SAFEM Act had not been addressed because the Supreme Court itself in Attorney General for India's case (supra) had held that SAFEM Act is directed towards forfeiture of illegally acquired properties of a person and the relatives and the associates of detenue are brought in only for the purpose of ensuring that the illegally acquired properties of the detenu, acquired or kept in their names, do not escape the net of the Act. According to Mr. Kaji it was well open for these petitioners to show and prove that the properties in question which had been acquired by them way back in the year 1971 had nothing to do with the illegal acquisition of the properties by way of any contribution from the concerned detenu and, therefore, such properties, which were acquired by the petitioners themselves without any aid from the concerned detenu, could not be forfeited. Mr. Kaji submitted that whereas this question was not decided by the Division Bench while passing the order on 9-8-94, these petitions cannot be thrown away on the principles of constructive res judicata and the right of the petitioners to seek adjudication on merit cannot be defeated. Mr. Kaji has placed reliance on a Supreme Court judgment in the case of Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 1013 in support of his aforesaid submission.
8. On the question of delay of two years in filing these petitions Mr. Kaji has submitted that the petitioners in both these petitions were not informed by their lawyer about the rejection of their petitions in August, 1994 and the petitioners came to know about the rejection of their petitioners only in August 1996 when the Department issued notices for the forfeiture of their properties under SAFEM Act and only thereafter they had moved for the certified copies of the orders in September, 1996 and on 9-9-96 the present petitions have been filed.
9. I have heard learned counsel for both the sides. Looking to the grounds as contained in para 15 of each of the earlier Special Civil Application Nos. 3469/83 and 3472/83 filed by the petitioners in these two petitions respectively and the contents of the prayers made in para 21 (E) and para 21 (G) of the earlier petitions filed by the petitioners respectively and the prayers which are made in the present Special Civil application Nos. 6897/ 96 and 6899/96, I find that the prayers are to the same effect and the grounds, on which the orders had been passed by the Appellate Authority on 17-6-83, which are sought to be challenged now on the basis of the consequential notices, which have been issued now after the Division Bench order passed by this Court, are the same and I find that these petitions, which had been filed now on the same set of facts and on the same grounds cannot be entertained and the notices dated 16-8-96, which have been now issued under the provisions of SAFEM Act for the forfeiture of the property in question do not furnish any fresh cause of action. These notices are only consequential notices because the proceedings could not be taken earlier in view of the pendency of the cases and in view of the interim orders which had been passed in the earlier proceedings pending before this Court. I need not go into the details of the decisions which have been referred to hereinabove and which have been cited by Mr. Patel because Mr. Kaji, the learned counsel for the petitioners, has very candidly stated that he does not dispute that the general principles of the Civil Procedure Code including that of constructive res judicata are applicable to the writ proceedings notwithstanding the amendment, which was made by way of adding an explanation under Section 141 of the Civil Procedure Code in the year 1977. The explanation, which was added under Section 141 of Civil Procedure Code, is reproduced as under :
"Explanation.- In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution."
10. It has been considered by our own High Court in the case of Gujarat Sachivalaya Staff Association v: State of Gujarat, (1989 (2) Guj LH 152) (Supra) that there is nothing in explanation to Section 141 of C.P.C. or in any other provision of law which precludes the High Court to apply certain principles underlying the provisions of the Code of Civil Procedure to a petition under Article 226 of the Constitution of India. It was also held in Hemraj v. I.T. Recovery Officer, AIR 1978 Raj 184 (supra) that in view of the explanation appended to the amended Section 141 of C.P.C., it does not apply to the proceedings under Article 226 of the Constitution, but general rules have been followed on the ground of equity, justice and good conscience. In AIR 1990 SC 1607 (supra) the Constitutional bench of the Supreme Court held that the second petition by same party and for same relief is barred by the principles of res judicata and in this Judgment the earlier decision of the Supreme Court in the case of Forward Construction Co. v. Prabhat Mandal (Regd.), Andheri, AIR 1986 SC 391 had also been considered. In Bhagwandas D. Tandel v. S.N. Sinha, 1996 (1) Guj LH 433 (supra) a single Bench of this Court had held that second petition was barred on the principles of waiver and abandonment of claim analogous thereto on the ground of public policy, particularly when no liberty to file a fresh petition was reserved while permitting withdrawal of earlier petition. Even in the matter of detention in the case of Bhanubhai N. Patel v. State of Gujarat, 1996 (2) Guj LR 803 (supra) a Full Bench of this Court had held that in case the petition challenging the order of preventive detention is withdrawn unconditionally without reserving liberty to file a second petition, a second petition on the same ground or on fresh grounds would not be maintainable.
11. The submission of Mr. Kaji is that the petition should be held to be maintainable and deserve to be considered and decided in view of the law laid down by the Supreme Court in the case of Amalgamated Coalfields v. Janapada Sabha, AIR 1964 SC 1013 (supra). He submitted that earlier, the grounds, which are now sought to be raised, had not been urged and at that time the controversy was only with regard to the validity of the provisions of COFEPOSA and SAFEM Act. In Amalgamated Coalfields's case (supra), the Supreme Court was concerned with the question of liability of a tax for a particular year and in that context the Supreme Court had held that in considering the question whether the decision for that particular year operates as res judicata in respect of the liability for a subsequent year, it may be necessary to distinguish between decision on question of law which directly and substantially arise in any dispute about the liability for particular year and question of law which arise incidentally or in a collateral manner, as the effect of legal decisions establishing the law would be a different matter. It was also held that doctrine of res judicata to the petitions filed under Article 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in Courts of law. The Supreme Court considered the question with reference to the point which had not been considered earlier and the point which was sought to be raised before the High Court in subsequent petition and found that in the subsequent petition the attack against the validity of the notices was based on grounds different and distinct from the grounds raised on the earlier occasion and it was not as if the same ground which was urged on the earlier occasion was placed before the Court in another form and that the grounds now urged are entirely distinct and accordingly it was held that the decision in the earlier occasion did not operate as constructive res judicata in subsequent writ petition before the High Court. Thus the case as was there before the Supreme Court in which the cause of action arises from year to year for the purpose of assessment cannot be treated on the same footing as involved in the present case and in my considered opinion, the law laid down by the Supreme Court in the case of Amalgamated Coalfields (supra) does not help or advance the case of the present petitioners in these two petitions and does not lend any support to the submissions made by Mr. Kaji to meet the preliminary objection raised by Mr. Patel. From the decisions, which have been considered, the principle is clearly discernible that for the same cause of action a party cannot be allowed to litigate the same issue or same prayer time and again so as to make it an endless process giving rise to multitude of litigation. Once a question has been raised and the, matter has been decided, the same issue or the same prayer cannot be agitated and re-agitated again and again with regard to the same cause of action. At the time when the Division Bench passed earlier orders in the petitions filed by the present petitioners, the prayers, as pointed out hereinabove in Para 21 (E) and Para 21 (G) of the respective petitions were there and it was also known to the petitioners as to what had been held by the Supreme Court in the case of Attorney General For India v. Amratlal Prajivandas, AIR 1994 SC 2179 and in the light of that judgment if the petitioners had any cause to show that their properties, which were in question, even if acquired in the year 1971 and even if they had shown it to be their legal income before the Taxation Department and that it had nothing to do with any contribution made by respective detenu, it was open for them to have argued the same and shown and proved their case to this effect before the Division Bench. The Division Bench has clearly observed that in view of the Supreme Court decision the Special Civil Applications are being dismissed. Therefore, the facts were there, grounds were there, the prayers were there and still the petitioners did not choose to argue these points before the Division Bench and the Division Bench had clearly observed that the petitions are being dismissed in view of the decision of the Supreme Court, the petitioners now cannot take a somersault and say that they did not argue the matters at that time and now they seek the same relief. Thus the writ jurisdiction of this Court cannot be allowed to be invoked by way of this second petition filed by the petitioners. Besides this, it may also be mentioned that both these petitions had been filed after a period of nearly 2 years from the date of the decision, which had been rendered by the Division Bench. For the purpose of explaining this delay of 2 years, the explanation given in the petitions is far from convincing. It has been submitted that the petitioners did not come to know about the rejection of their petitions by the Division Bench for a period of 2 years. The High Court lawyer had informed the local lawyer but the local lawyer in turn did not inform them and they came to know about the rejection of their earlier petitions only when the notices were issued by the concerned Department in August 1996. On such bald statement, 2 years delay, after the Division Bench's order, in filing these petitions hardly stands explained and both these petitions also suffer from an inordinate and unexplained delay.
12. For the reasons aforesaid, the preliminary objection raised by Mr. Patel succeeds and both these petitions are dismissed on the preliminary objection, as aforesaid. Rule is hereby discharged in both the matters with no order as to costs. Interim orders dated 18-9-96 passed in each of these two petitions shall stand automatically vacated forthwith.