Dindayal Madhamia and Co. and Others vs Union of India (UOI) and Others

J.N. Sarma, J.—R.A. 4/93 has been filed against the judgment passed in C.R. 74/86 and R.A. 5/93 has been filed against the judgment passed in C.R. 522.86. The facts and the questions of law which arise are same in both the cases and as such they are taken for hearing together.

The learned Single Judge dismissed both the writ applications holding that there was no material to show that the detention of the Petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called "Cofeposa Act, 1974) was illegal. There was no pleading to hold that detention is illegal. Though no record was produced before the learned Single Judge, the learned judge came to the finding that it must be held that the official act must be deemed to be regularly performed and he refused to draw adverse inference for non-production of record. Having arrived at this finding, the writ applications are rejected The prayers made in the writ applications were to quash the order dated 26.4.1985 (Annexure-H) and the order dated 30.12.1995 (Annexure-I) (in C.R. 74/86). The same are the orders but of different dates in the other civil rule. Annexure-H is an order passed by the learned appellate tribunal at Calcutta and the appellate tribunal inter alia came to the findings as follows:

In the facts and circumstances discussed above, I declare all the properties described in the Schedule to the notice u/s 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 issued to Masudilal and Sons on 29.12.1979 as illegally acquired properties under Sub-section (1) of Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 and also declare under Sub-section (3) of Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 that the said properties stand forfeited to the Central Government free from all encumbrances.

As against that, an appeal was filed and on 13th December, 1985 the following order was passed:

Our finding is that these assets all flow from the amount disclosed (Rs. 1,08,620) under the Voluntary Disclosure of Income and Wealth Act, 1976. In view of our finding that the source of the funds/assets disclosed under the above Act is not proved, the introduction of capital of Rs. 47,425 in Sanjay Kumar Vivek Kumar from legitimate sources is also not proved and the Appellants share in the firm Sanjay Kumar Vivek Kumar as represented by the capital of Rs. 47,425 and profits and accretions attributable thereto and held to be illegally acquired property. Competent Authority''s order is confirmed to the above extent.

Accordingly the appeal was partly allowed. The situation is same in the civil rule also save and except the amount. The learned Single Judge by the impugned order rejected the writ applications holding that there is no material to quash the impugned order. These review petitions have been filed only on one ground, i.e. that the finding of the learned Single Judge that there was no material/ pleading challenging the legality and validity of the detention order that there is patent error on the face of the record and in support of this contention, learned Counsel for Petitioner places reliance in two decisions.

Sri-La-Sri Subramania Desika Gnanasambanda Pandarasannadhi Vs. State of Madras and Another, where in para 17 of the judgment the law has been laid down as follows:

Plea not raised in petition or in the affidavit in its support but specifically taken up in affidavit-in-rejoinder and Respondents having full notice of it-rejection of petition by High Court on the ground that the plea was raised for the first time at time of argument-Order held erroneous.

So, even though the pleading is not taken in the original writ application, if that plea is taken in affidavit-in-reply or in affidavit-in-rejoinder and the Respondents have the notice of that plea, that must be deemed to be the part of the pleading.

The next case on this point is Bharat Singh and Others Vs. State of Haryana and Others, where in para 13, the law has been laid down as follows:

When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ Petitioner, must plead and prove such facts by evidence which must appear form the writ petition and if he is the Respondent, from the counter-affidavit. If the facts are not pleased or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. There is a distinction between a pleading under the CPC and a writ petition of a counter affidavit. While is a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

On the basis of these two decisions quoted above, Mr. G.N. Sahewalla, learned Counsel submits that the findings of the learned Single Judge is erroneous and accordingly that judgment requires to be reviewed.

A review cannot be a second round of litigation. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, review lies only for patent error. The object of review is not to enable a Judge to write a second judgment as the first one was wrong. The error apparent on the face of the record must be self-sufficient and if it is not self sufficient that cannot be deemed to be error apparent. I do not find such an error apparent on the record and accordingly I do not find any ground to review the earlier judgment passed by the learned Single Judge in the civil rules mentioned above. This review application accordingly shall stand rejected.

Heard Mr. G.N. Sahewalla, learned Counsel for the Petitioner and Mr. G.P. Bhowmik, learned Counsel for Union of India and also Mr. H. Rahman, learned G.A. for State of Assam.