Full Judgment Text
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CASE NO.:
Appeal (civil) 1818 of 2007
PETITIONER:
Bhagubhai Dhanabhai Khalasi & Anr
RESPONDENT:
The State of Gujarat & Ors
DATE OF JUDGMENT: 05/04/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1818 2007
[Arising out of S.L.P. (C) No. 6257 of 2006]
S.B. SINHA, J.
Leave granted.
An order of preventive detention was passed against the appellant
under the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (for short, "COFEPOSA Act"). He had properties at
Bhadarwal, in the district Jaipur and a fixed deposit receipt of Dena Bank.
The said properties were forfeited under the Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short,
"SAFEMA"). He filed a Writ Petition in the Gujarat High Court questioning
the said order of detention as also the order passed under SAFEMA. The
said Writ Petition was allowed. A Special Leave Petition filed thereagainst
by the competent authority was also dismissed. Representations were made
by him for return of the said properties. An order was passed by the
competent authority on or about 30.1.1996 canceling the Order dated
24.9.1979 whereby and whereunder the properties were directed to be
forfeited. Allegedly, whereas the fixed deposit receipt was returned to him,
the immovable properties were not. A Writ Petition was filed by the
appellant. Allegations made in the said writ petition were denied and
disputed. Respondent No. 4 who was impleaded as a party thereto
contended that the appellant had transferred the said property in his favour.
A learned Single Judge of the High Court by a Judgment and Order dated
17.1.2005 dismissed the said writ petition, holding;
"6. I have gone through the petition, documents
annexed with the memo of petition, affidavits and other
documents which have been shown to me by the
learned counsel for the respective parties. The facts of
the present petition are peculiar as during the pendency
of the proceedings, certain changes have been taken
place. It is the case of the other side that the property in
question has been sold by the Petitioners to the third
party by way of registered sale deed, before finalization
of the proceedings, but the Petitioner has denied the
same. It is the case of the Petitioners that the Petitioners
have not sold the property in question, but some
persons have forged and fabricated documents and the
property has been transferred by way of registered sale
deed, behind the back of the Petitioners illegally and
fraudulently. It has also been established that during
the course of the proceedings, the property has been
vested to the Jaipur Urban Development Authority.
Thus, the questions which arise for consideration of this
Court in this Petition is disputed questions of facts. It
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is the case of the Petitioners that they are owners of the
property and it is the duty of the Respondent authorities
to hand over the possession of the property in question
to them and on the other hand, it is prima facie
established that third party interest has created by way
of sale deed since long and same has not been
challenged by the Petitioners on anybody else and the
said registered sale deed is in operation as on today.
Therefore, whether the aforesaid sale-deed is legal and
the same has been executed by the Petitioners or the
same is false and fabricated, cannot be decided in this
proceedings initiated by the Petitioners under Article
226 of the Constitution of India. The Petitioners are
required to initiate appropriate proceedings before
appropriate Court.
So far as the decisions, upon which the learned counsel
for the Petitioners has placed reliance, are concerned, I
am in total agreement with the ratio laid down in the
said decisions. But as stated earlier, in this petition
disputed questions of facts have been arisen and
therefore, the Petitioners cannot get benefits of the said
judgment."
The learned Single Judge, therefore, did not go into the question, as to
whether the appellant had transferred the said property in favour of the
respondent No. 4 herein or not. An intra-court appeal preferred thereagainst
under the Letters Patent of the Bombay High Court was preferred
thereagainst by the appellant. Apparently, a question was raised therein as
to whether the same in effect and substance was filed by the appellant or
some other person.
A handwriting expert opined that two signatures on the application
dated 4.4.1997 and two signatures on a certified Photostat copy of affidavit
dated 13.1.2003 were not that of the appellant. Appellant was directed to
appear before the Division Bench and he purportedly admitted that he had
executed a deed of sale in favour of the respondent No. 4. A prayer was
made for withdrawal of the appeal by the learned counsel appearing on the
behalf of the appellant reserving right to agitate the grievances before an
appropriate forum. The Division Bench while granting permission to
withdraw the appeal refused to grant such permission stating;
"At this juncture, Shri Sanjanwala submitted that his
right to pursue other remedy be reserved. But,
looking to the peculiar facts and circumstances of
the case and the seriousness of the matter, we made
it clear to Shri Sanjanwala that we may not pass this
order and may not grant simple permission to
withdraw the Appeal, but we may like to decide this
Appeal on merits and ultimately the person
concerned in the matter may have to even face the
consequences. Thereupon, Shri Sanjanwala gave up
his request."
Mr. Ashok Desai, learned senior counsel appearing on behalf of the
appellant would submit that the Division Bench of the High Court
committed a manifest error in passing the said order, insofar as it failed to
take into consideration that by preferring the appeal, the appellant could not
have been put in a worse condition.
Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the
respondent, however, had drawn our attention to the counter affidavit
affirmed by respondent No. 4 to contend that the appellant was guilty of
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making a misrepresentation before the Division Bench of the High Court and
filed a large number of forged documents. In any event he, having admitted
the execution of the sale deed in favour of the respondent No. 4 herein
cannot be permitted to litigate before any other forum.
Allegations made in the said counter affidavit are denied and disputed
by the appellant in his rejoinder thereto.
It does not appear that in relation to the purported report of
handwriting expert, any order was passed upon taking cognizance thereof,
even no proceeding under Section 340 of the Code of Criminal Procedure
was initiated.
The Division Bench of the High Court as also the learned Single
Judge admittedly did not enter into the merit of the matter. The learned
Single Judge noticed the respective cases of the parties and refused to
entertain the writ petition on the premise that the same involved disputed
questions of fact. He, opined that the appellant may agitate his grievances
before an appropriate forum. An intra-court appeal was filed thereagainst by
the appellant alone. The respondent did not do so. The jurisdiction of the
appellate court, thus should have been kept confined only to the question as
to whether the writ petition should have been determined on merit by the
learned Single Judge.
A party having a grievance must have a remedy. Access to justice is
a human right. When there exists such a right, a disputant must have a
remedy in terms of the doctrine ubi jus ibi remedium.
In Dwarka Prasad Agarwal (D) by Lrs. and Another v Ramesh
Chander Agarwal and Others [(2003) 6 SCC 220], this Court held;
"22. The dispute between the parties was
eminently a civil dispute and not a dispute under
the provisions of the Companies Act. Section 9 of
the Code of Civil Procedure confers jurisdiction
upon the civil courts to determine all disputes of
civil nature unless the same is barred under a
statute either expressly or by necessary
implication. Bar of jurisdiction of a civil court is
not to be readily inferred. A provision seeking to
bar jurisdiction of a civil court requires strict
interpretation. The court, it is well settled, would
normally lean in favour of construction, which
would uphold retention of jurisdiction of the civil
court. The burden of proof in this behalf shall be
on the party who asserts that the civil courts
jurisdiction is ousted. (See Sahebgouda v. Ogeppa)
Even otherwise, the civil courts jurisdiction is not
completely ousted under the Companies Act,
1956."
In Dwarka Prasad Agarwal (D) by Lrs. and Another v B.D. Agarwal
and Others [(2003) 6 SCC 230], this Court held;
"38. There is another aspect of the matter which
must also be taken notice of. A party cannot be
made to suffer adversely either indirectly or directly
by reason of an order passed by any court of law
which is not binding on him. The very basis upon
which a judicial process can be resorted to is
reasonableness and fairness in a trial. Under our
Constitution as also the international treaties and
conventions, the right to get a fair trial is a basic
fundamental/human right. Any procedure which
comes in the way of a party in getting a fair trial
would be violative of Article 14 of the Constitution
of India. Right to a fair trial by an independent and
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impartial Tribunal is part of Article 6(1) of the
European Convention for the Protection of Human
Rights and Fundamental Freedoms, 1950 [See Clark
(Procurator Fiscal, Kirkcaldy) v. Kelly].
Furthermore, even if the petitioner herein had filed a
writ petition before the High Court in terms of
Article 226 of the Constitution of India, the same
would not have been entertained as the impugned
order had been passed consequent to and in
furtherance of the purported consent order passed by
the High Court. Ordinarily, the High Court would
not have issued a writ of certiorari for quashing its
own order. Even in that view of the matter it is
apposite that this petition under Article 32 should be
entertained."
See Swamy Atmananda and Ors. v Sri Ramakrishna Tapovanam and
Others [(2005) 10 SCC 51].
There is nothing on record to show that the Division Bench while
entertaining the Letters Patent Appeal intended to enter into any other
question. Judges’ record as is well known is final and conclusive. Any
dispute in relation thereto must be raised before the same Court.
In Messrs. Associated Tubewells Ltd. v R.B. Gujarmal Modi [A.I.R.
1957 SC 742], this Court deprecated the practice of referring to conversation
which took place in Court, stating;
"4. We cannot, however, part from this matter
without placing on record our very strong
disapproval of the course that the Advocate \026 a
very senior counsel of this Court \026 has adopted in
making this application. In the review application
he has referred in detail as to what, according to
him, happened in Court on the prior occasion and
what each Judge said in the course of the
arguments. The review application sets out at
length what the presiding Judge said and expressed
in the course of the arguments and what his views
were and what the other Judges of the Bench said
and expressed and what the view of each was.
These statements are followed by a confident
assertion how and why the application was
dismissed."
Yet again in State of Maharashtra v Ramdas Shrinivas Nayak and
Another [AIR 1982 SC 1249], this Court opined;
"7. So the Judges’ record is conclusive. Neither
lawyer nor litigant may claim to contradict it,
except before the Judge himself, but nowhere
else."
See also Guruvayoor Devaswom Managing Committee and Another
v C.K. Rajan and Others [(2003) 7 SCC 546]
The Division Bench did not go into the correctness or otherwise of the
allegations and counter allegations made by the parties before it. Whether
appellant was guilty of any forgery or not was not determined.
It is therefore, difficult to accept the contention of Mr. Jain that the
Division Bench intended to exercise larger jurisdiction. If it intended to do
so, it could have taken recourse to procedure known to law.
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It allowed the appellant to withdraw the appeal. By doing so, the
parties were relegated to the same position to which they had been viz. when
the learned Single Judge dismissed the Writ Petition. Appellant, thus in our
view could not have been placed in a worse position.
We, therefore, are of the opinion that the part of the impugned order
whereby and whereunder the Division Bench refused to grant leave to the
appellant to ventilate his grievances before an appropriate forum cannot be
sustained. This appeal is allowed to the aforementioned extent. We,
however, make no order as to costs.