Full Judgment Text
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PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
PARASMAL RAMPURIA
DATE OF JUDGMENT: 16/03/1998
BENCH:
S.B. MAJMUDAR, S.P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
MAJMUDAR, J.;
Delay condoned.
Leave granted.
We have heard learned counsel for the parties.
In our view, a very unusual order seems to have been
passed in a pending appeal by the Division Bench of the High
Court. It is challenged by the Union of India in these
appeals. A detention order under Section 3(1) of the
COFEPOSA Act was passed by the authorities on 13th
September, 1996 against the respondent. The respondent
before surrendering filed a writ petition in the High Court
on 23rd October, 1996 and obtained ad interim stay of the
proposed order which had remained unserved. The learned
Single Judge after hearing the parties vacated the ad
interim relief. Thereafter, the respondent went in appeal
before the Division Bench and again obtained ad interim
relief on 10th January, 1997 which was extended from time to
time. The writ appeal has not been still disposed of.
When the writ petition was filed, the respondent had
not surrendered. Under these circumstances, the proper
order which was required to be passed was to call upon the
respondent first to surrender pursuant to the detention
order and then to have all his grievances examined on merits
after he had an opportunity to study the grounds of
detention and to make his representation against the said
grounds as required by Article 22(5) of the Constitution of
India. It is true as the learned partly heard before the
Division Bench and the last hearing was over on 4th June,
1997 and thereafter, the Bench has not reassembled. It is
obvious that for the same neither the respondent nor the
appellant is at fault. However, the fact remains that the
detention order dated 13th September, 1996 has still not
been executed and the respondent has not surrendered. Under
these circumstances, in our view, it will be appropriate to
direct that the ad interim relief which is extended from
time to time by the Division Bench of the High Court and
which was continued all throughout, shall stand vacated. We
also vacate the further orders of extension of interim
relief and direct the respondent to surrender in the light
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of the detention order. After surrendering it will be open
to the respondent to amend his writ petition and to take all
permissible legal grounds to challenge the detention order
and these grounds will have to be considered by the High
Court on their own merits after hearing the parties. These
appeals have been moved Also against various extensions of
interim relief orders passed by the Division Bench pending
the appeal. All these extension orders are also set aside.
We make it clear that we make no observation on the merits
of the controversy centering round this detention order. The
said controversy will have to be resolved by the High Court
in the pending writ petition after hearing the contesting
parties.
At the request of the learned senior counsel for the
respondent the writ appeal which is pending, is permitted to
be withdrawn as the rightly submits that it has become
infructuous pursuant to this order. The appellant is given
liberty to execute the detention order forthwith as its
execution is already delayed by more than one year and six
months.
Before parting with the case, we must mention one
contention canvassed by the learned senior counsel for the
respondent. He submitted that though the detention order
was dated 13th September, 1996, it was not executed against
the respondent till he obtained interim relief from the
learned single Judge on 23rd October, 1996 and thereafter
also subsequently there was no interim relief from
12.11.1996 to 10.1.1997, yet the order of detention was not
executed. Therefore, according to him, the order of
detention has become stale. This contention can be
canvassed by proper amendment to the writ petition after the
respondent surrenders. As and when such amendment is moved,
it will be open to the appellants to contest the amended
petition on all legally permissible grounds and to have
their say as to why the order was not executed during the
time when there was no stay. All these questions are kept
open for consideration of the High Court in the pending writ
petition.
The appeals are allowed accordingly.