Rukia Bi vs Union Of India

Shaji P. Chaly, J.

Petitioners in W.P.(C) No. 19018 of 2019 have filed the captioned appeal challenging the judgment of the learned single Judge dated 28.03.2022, whereby the writ petition was dismissed declining the following reliefs sought for in the writ petition:

Declare that Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 to the extent of its adverse inconsistency with the rest of the provisions under Section 2(2) of the said Act is discriminatory, ultra vires, null void and unconstitutional and strike down the Constitution (40th Amendment) Act, 1976 insofar as it places SAFEMA, to the extent it discriminates a person mentioned in Section 2(2)(b) from a person mentioned in Section 2(2)(a) of SAFEMA in the matter of application of SAFEMA, in the Ninth Schedule to the Constitution of India;

OR

in the alternative, Declare  that  Section  2(2)(b)  of  the  Smugglers  and  Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 should be read down in a constitutionally valid manner avoiding any kind of discrimination.

Call for the entire records relating to Ext. P2, declare the Ext. P2 issued by the respondent No.2 is illegal and set aside Ext. P2 and the entire proceedings of all the authorities including that of the respondent No.2 in pursuance of and built up on the foundation of Ext. P2.

Declare that the entire proceedings initiated against the properties of late Mr. P. S Ahamed Koya and his wife Rukia Bi on the basis of Exts.P1 and P2 are illegal and unconstitutional and therefore, null and void.

Call for the records leading to the purported auction mentioned about under Ext. P30 in relation to the properties involved in the present case i.e., those covered under serial No.1 and 2 in the Annexure to Ext. P2 and set aside the same.

Call for the records leading to Exts.P37B and P37C and issue writ of certiorari or any other appropriate writ, order or direction quashing the originals of Ext. P37B and P37C and all actions of the respondents in pursuance of Exts.P37B and P37C;

Brief material facts for the disposal of the appeal are as follows:

Appellant No.1 is the widow of one late P.S. Ahamed Koya, who was a watch repairer by profession at Kozhikode. Rest of the appellants are their children, and legal representatives of late P.S Ahamed Koya, who died on 06.12.2017.

On 13.01.1973, 22 watches worth Rs. 3720/- were seized from his watch repair shop apparently under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA for short); however, 7 were returned.

The case projected by the appellants is that, more than 2 years thereafter, during the period of emergency, late Ahamed Koya was detained for a period of more than 1 ½ years from 16.08.1975 to 24.03.1977. Later, on the basis of the said detention, the competent authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 ('SAFEMA' for short), the second respondent, proceeded against the landed properties of late Ahamed Koya and his wife situated in Kozhikode District, under the SAFEMA and issued orders forfeiting the same, which according to the appellants, was without examining any of the fundamental legal issues involved in the case.

It is further pointed out that in an appeal filed before the appellate authority under the SAFEMA, out of 3 items of landed properties, one item of property owned by the first appellant was released to her. Rest of the landed properties are 1.27 acres of land owned by late Ahamed Koya and 58 ½ cents of land owned by the first appellant.

Anyhow, the writ petition and the writ appeal preferred against the same were dismissed, which according to the appellants, was without examining the fundamental issue, as to whether the foundation of a detention order which is the prerequisite for initiating proceedings under SAFEMA, is established in the case. The further case of the appellants is that the said fundamental issue raised in the instant writ petition is not seen raised in the concluded proceedings.

In the meanwhile, the Ministry of Defence, Government of India, issued a general circular instructing its offices to drop those proceedings where the value of the properties under SAFEMA proceedings are less than rupees one lakh. It is submitted that though the benefit of the circular was sought and the writ petition was filed, it was in vain. According to the appellants, even though late Ahamed Koya attempted, under the Right to Information Act, to obtain the relevant materials pertaining to the proceedings against him, the second respondent rejected his application.

However, the National Commission, in an appeal, directed the second respondent to facilitate him for the inspection of the entire records within four weeks but, the said direction is not so far complied with by the second respondent. Anyhow, the learned counsel for the appellants has submitted that that is not the subject matter of issue in this appeal; however the proceedings against the said inaction is pending consideration in a writ petition. It is also submitted that in a clandestine and fraudulent manner, the second respondent has auctioned the land forfeited without any notice or information to the appellants and without complying with the legal requirements. Contentions based on the same are also advanced.

In the writ petition, the appellants have also challenged the constitutional validity of Section 2(2)(b) of the SAFEMA to the extent it is adverse and inconsistent with the rest of the provisions under Section 2(2) of the said Act.

The first respondent has filed a statement in the writ petition refuting the allegations and the claims and demands raised by the petitioner and primarily contending that the entire proceedings initiated against the late Ahamed Koya were concluded as per the proceedings of the competent authority, the appellate authority, as well in a writ petition and writ appeal, before this court, filed by late Ahamed Koya and therefore, the proceedings cannot be reopened by challenging the constitutional validity of certain provisions. It was also submitted that the constitutional validity of SAFEMA was challenged and the Apex Court has upheld the provisions of SAFEMA and therefore, the appellants cannot attempt to re-open the concluded proceedings by raising the constitutional validity of the SAFEMA.

The  learned  single  Judge,  after  considering  the  rival submissions and taking into account the provisions of the COFEPOSA and SAFEMA, dismissed the writ petition holding as follows:

“7. I have considered the contentions advanced at considerable length. It is not in dispute that the original detenue, who is the husband of the 1st petitioner was detained under the COFEPOSA. Exhibit P1 is the declaration issued under Section 12­A of the COFEPOSA. Section 12­A of the COFEPOSA reads as follows:­

“12A. Special provisions for dealing with emergency. (1) Notwithstanding anything contained in this Act or any rules of natural Justice, the provisions of this section shall have effect during the period of operation of the Proclamation of Emergency issued under clause (1) of Article 352 of the Constitution on the 3rd day of December 1971, or the Proclamation of Emergency issued under that clause on the 25th day of June, 1975, or a period of (twenty­four months) from the 25th day of June, 1975, whichever period is the shortest.

(2) When making an order of detention under this Act against any person after the commencement of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1975, the Central Government or the State Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the proclamations referred to in sub­section(1) have been issued (hereafter in this section referred to as the emergency) and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government or officer may make a declaration to that effect and communicate a copy of the declaration to the person concerned:

Provided that where such declaration is made by an officer, it shall be reviewed by the appropriate Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government, after such review, within the said period of fifteen days.

(3) The question whether the detention of any person in respect of whom a declaration has been made under sub­ section (2) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months, and if, on such reconsideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, the Government may revoke the declaration.

(4) In making any consideration, review or reconsideration under sub­section (2) or (3), the appropriate Government or officer may, if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.

(5) It shall not be necessary to disclose to any person detained under a detention order to which the provisions of sub­section (2) apply, the grounds on which the order has been made during the period the declaration made in respect of such person under that subsection in is force, and, accordingly, such period shall not be taken into account for the purposes of sub­section (3) of section 3.

(6) In the case of every person detained under a detention order to which the provisions of sub­section (2) apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be taken into account for the purpose of computing­

(i) the periods specified in clauses (b) and (c) of section 8; (ii) the periods of "one year" and "five weeks" specified in subsection (1), the period of "one year" specified in sub­ section (2)(i), and the period of "six months" specified in subsection (3) of section 9.”

8.The nine Judge Bench of the Apex Court in Attorney General's case (supra) specifically considered a challenge to the COFEPOSA and the SAFEMA on various grounds. The said judgment specifically referred to orders of detention made on or after the date of proclamation of emergency to which Section 12­A was applicable. It was specifically noticed by the Bench that the detenues were neither supplied with the grounds of detention nor were they given an opportunity to make representation against their detention nor were their cases referred to the Advisory Board. After considering the entire legal contentions raised and specifically the various provisions including Section 2(2)(b) of the SAFEMA, it was held that the Parliament was perfectly competent to enact both the COFEPOSA and the SAFEMA. It was further held that an order of detention made under Section 3 of COFEPOSA which was governed by Section 12­A thereof is yet an order of detention for the purpose of and within the meaning of Section 2(2)(b) of the SAFEMA and can serve as the foundation for applying the SAFEMA.

9.The declaration under Section 12­A in respect of the original detenue is produced as Exhibit P1 in this writ petition. In pursuance thereto, proceedings had been issued against the properties of the original detenue and the 1st petitioner herein. The said proceedings were challenged by them before this Court, unsuccessfully. Further, they had again approached this Court seeking the benefit of the circular issued by the Central Government on 23.6.1994. Those proceedings also ended in dismissal and was confirmed up to the Apex Court, even in review. The 1st petitioner has, therefore, suffered adverse orders in her application. The orders issued under the SAFEMA therefore stood affirmed. The other petitioners, who claim to be the legal heirs of the original detenue, therefore have absolutely no claim or title to the property, which stood confiscated under the provisions of the SAFEMA, which had been upheld upto the Apex Court.

10.After having challenged the order issued directly, I fail to see how the 1st petitioner or anyone claiming through the original detenue can raise the legal contentions before this Court on the varied grounds which they seek to raise in this writ petition.

In the above factual situation, I am of the opinion that it is unnecessary to go into the legal questions raised by the petitioner with regard to jurisdiction and fraud, since the issue stands conclusively decided inter partes and no further adjudication is possible in law. The writ petition fails and the same is accordingly dismissed.”

It is, thus, challenging the legality and correctness of the said judgment, the appeal is preferred.

We have heard, Sri. P. A. Noor Muhamed for the appellant, Sri. S. Manu, learned Assistant Solicitor General of India for respondents 1 and 2, learned Senior Government Pleader Sri. K.P Harish for respondents 5, 6, 8 and 9, Sri. Nirmal S. appearing for respondent No.7, Sri. Manu Tom and Sri. P.M. Rafiq, and perused the pleadings and material on record.

The paramount contention advanced by the appellant is that the learned single Judge failed to appreciate that as per Section 2(2)(b) of SAFEMA, there are two statutory prerequisite, which are sine quo non to have jurisdiction for the competent authority to initiate the forfeiture proceedings. It is further submitted that there was no order of detention under Section 3 of the COFEPOSA and in order to attract the provisions of SAFEMA, the said order of detention ought not to have been set aside or revoked on the basis of the first review under Section 12(3) of the COFEPOSA or on the basis of a report of the Advisory Board under Section 8 r/w Section 12A(6) of the COFEPOSA.

The sum and substance of the contention advanced by the learned counsel for the appellants is that the said prerequisites have not been specified and there was no order of detention against late Ahamed Koya under Section 3 of the COFEPOSA. The gravamen of the contentions advanced by the appellants is that there is no material showing that the said order of detention has not been revoked. But, on the other hand, the inevitable consequence of the order of detention is that unless it is confirmed by the Advisory Board, it shall be deemed to be revoked is the contention.

It is further submitted that nowhere in the impugned forfeiture proceedings or Ext. P3 forfeiture order, the second respondent has marked or even stated that there was an order of detention and that the same has not been revoked, because the truth is otherwise. Therefore, according to the appellants, there was no detention order, and accordingly detention stands revoked.

That apart, it is contended that the learned single Judge erred in dismissing the writ petition, despite the absence of any finding by the learned single Judge that there is an order of detention and that the same has not been revoked, which are the statutory preconditions to have jurisdiction for the respondent No.2 to initiate forfeiture proceedings. It is also submitted that the learned single Judge ought to have found that if no order of detention could be produced and if there is no material to show that the order of detention had not been revoked, whatever orders were issued in the absence of those basic and fundamental materials which are essential to have jurisdiction to initiate the forfeiture proceedings under SAFEMA, the same are nullity and non est.

It is further submitted that the learned single Judge has overlooked a catena of well settled propositions of the Hon'ble Apex Court, which all concurrently hold that the order of detention is an indispensable precondition to apply SAFEMA. The appellants have also relied upon the following judgments of the Apex Court; Aslam Mohammed Merchant v. Competent Authority and ors. [(2008) 14 SCC 186], SBP & Co. v. Patel Engg. Ltd. [2005 KHC 1909], V.K. Ashokan v. CCE [(2009) 14 SCC 85], Union of India & ors. v. Haji Mastan Mirza [(1984) 2 SCC 427], Union of India & ors. v. Manoharlal Narang [(1987) 2 SCC 241], Fatima Mohd. Amin (Dead) through Lrs v. Union of India & anr. [2003 KHC 1545] and Attorney General of India v. Amratlal Prajivandas [(1994) 5 SCC 54].

Among other contentions, it is submitted that the question of constitutionality raised by the appellants is confined only to Section 2(2)(b) of SAFEMA to the extent of the person mentioned thereunder, who were subjected to unjust discrimination denying him equality before law and equal protection of law guaranteed under Article 14 of the Constitution of India compared to the person mentioned under Section 2(2)(a) which was never a question raised, debated, considered or decided in the judgment of the Apex Court in Attorney General (supra), which was relied upon by the learned single Judge to hold that the constitutional validity of SAFEMA was upheld by the Apex Court.

The sum and substance of the contention based on the decision in Attorney General (supra) is that the question of constitutional validity raised by the appellants was relating to the discrimination to the person mentioned under Section 2(2)(b) of SAFEMA; which was not a question at all in Attorney General (supra). The said submission is made by the learned counsel for the appellants on the basis of the decision of the Apex Court in Smt. Saiyada Mossarrat v. Hindustan Steel Ltd. & ors. [(1989) 1 SCC 272]. It is also pointed out that the principles of res judicata or constructive res judicata would not come into play, if the constitutionality had not been questioned and decided as is held by the Apex Court in Nand Kishore v. State of Punjab [(1995) 6 SCC 614].

That apart, it is contended that there is no intelligible differentia between the persons mentioned under Sections 2(2)(a) and 2(2)(b) and therefore, the classifications done under the same does not pass the twin test of the valid classification i.e., intelligible differentia and rational nexus of the differentia to the objects sought to be achieved by law.

In that regard, the learned counsel has relied upon a judgment of the constitution Bench of the Apex Court in State of Gujarat v. Shri. Ambica Mills Ltd. [(1974) 4 SCC 656]. Relying upon the said judgments, various other contentions are also raised.

On the other hand, the learned counsel appearing for the respondents have advanced arguments fully supporting the judgment of the learned single Judge and basically raising a point that the proceedings against late Ahamed Koya has concluded by virtue of the orders passed by the respective statutory authorities and in the judgment of this Court in the writ petition and the writ appeal, evident from Exts. P1 to P5 orders/judgments.

That apart, it is submitted that the constitutional validity of the provisions of SAFEMA was upheld by the Apex Court in Attorney General (supra) and that after concluding the proceedings and rendering the orders by the competent authority as well as this Court in the writ petition and writ appeal inter partes, the same cannot be reopened by the legal heirs of the detenu by challenging the constitutional validity of Section 2(2)(b) of the SAFEMA.

We have appreciated the rival submissions made across the Bar. The sole question to be decided is as to whether there is any jurisdictional error or other legal infirmities in the judgment rendered by the learned single Judge.

It is an admitted fact that the proceedings were initiated against the late Ahamed Koya under the COFEPOSA and consequent to which, by virtue of the imperative provisions of SAFEMA, the properties of late Ahamed Koya and his wife were forfeited. The said proceedings admittedly have been concluded after Ahamed Koya resorted to the provisions of the SAFEMA. It is also an admitted fact that Ahamed Koya has not raised any question of jurisdiction of the authority under the SAFEMA to invoke the provisions of the SAFEMA and forfeit the properties.

The basic contention advanced by the appellants is that there was no detention order passed by the authority under the COFEPOSA, which is a mandatory requirement to invoke the provisions of the SAFEMA. It is in that context that the appellants have contended that the action initiated by the competent authority is in violation of Section 2(2)(b) of the SAFEMA.

Section 2 of SAFEMA dealing with 'application' specifies that the provisions of the Act shall be applied to the persons specified in sub-Section (2) thereto. Section 2(2)(b) reads thus:

“(2) The persons referred to in sub­section (1) are the following, namely: ­

...

(b) every person in respect of whom an order of detention has been made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974); Provided that­

(i) such order of detention, being an order to which the provisions of section 9 or section 12A of the said Act do not apply, has not been revoked on the report of the Advisory Board under section 8 of the said Act or before the receipt of the report of the Advisory Board or before making a reference to the Advisory Board; or

(ii) such order of detention, being an order to which the provisions of section 9 of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the review under sub­ section (3)of section 9, or on the report of the Advisory Board under section 8, read with sub­ section (2) of section 9, of the said Act ; or

(iii)such order of detention, being an order to which, the provisions of section 12A of the said Act apply, has not been revoked before the expiry of the time for, or on the basis of, the first review under sub­section (3) of that section, or on the basis of the report of the Advisory Board under section 8, read with sub­section (6) of section 12A, of that Act ; or

(iv) such order of detention has not been set aside by a court of competent jurisdiction ;

(c) every person who is a relative of a person referred to in clause (a) or clause (b) ;

(d) every associate of a person referred to in clause (a) or clause (b);

(e) any holder (hereafter in this clause referred to as the present holder) of any property which was at any time previously held by a person referred to in clause (a) or clause (b) unless the present holder or, as the case may be, any one who held such property after such person and before the present holder, is or was a transferee in good faith for adequate consideration.”

The paramount contention advanced by the learned counsel for the appellants relying upon the said provision is that there is no order of detention passed by the competent authority or revoked on the basis of a report of the Advisory Board under Section 8 of the COFEPOSA and accordingly the detention of late Ahmed Koya is bad and therefore, the authority under SAFEMA had no jurisdiction to take any forfeiture proceedings. Section 8 of the COFEPOSA reads thus:

“8. Advisory Board.­­ For the purposes of sub­clause (a) of clause (4), and sub­clause (c) of clause (7) of Article 22 of the Constitution,­

(a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub­ clause (a) of clause (4) of Article 22 of the Constitution;

(b) save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub­clause (a) of clause (4) of Article 22 of the Constitution;

(c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned;

(d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board;

(e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;

(f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.”

Therefore, according to the learned counsel for the appellants, without complying with those basic requirements contained under the afore deliberated provisions, the competent authority under the SAFEMA had no jurisdiction at all to forfeit the property and proceed with the same and the appellate authority as well as the writ court and the appellate court have failed to consider the said aspect while confirming the order of the competent authority.

Whatever that be, the whole episode, in our view, was a consequence of the emergencies declared on the 3rd day of December, 1971 and the 25th day of June, 1975; and to catch up with the said situation Section 12A was brought into force by amending the COFEPOSA, thus diluting the rigour of the existing provisions of the Act 1974. It is accordingly that Exhibit P1 order dated 16.08.1975 is issued by the State Government. It reads thus:

“GOVERNMENT OF KRRALA

HOME (SS) DEPARTMENT

No. 36686/SS/75/Home                                                                                                                                                                       Datad: Trivandrum, 16.8.1975

DECLARATION

The Government of Kerala  being  satisfied (on the basis of information and material in its possession) at the time of making the order of detention under Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against Shri. P. S. Ahamd Koya, son of Kuttymon, Rukia Manzil, Kannacherry, Panniankkara, Kozhkode District that the detenting of the aforesaid Shri. P. S. Ahamed Koya is necessary for dealing effectively with the emergency in respect of which the Proclamation referred to in sub­section (1) of Section 12A of the said Act have been issued, hereby declares under sub­Section (2) of the said Section 12A that the detention of the said Shri. P.S Ahmad Koya under sub­Section (1) of Section 3 of the said Act is necessary for effectively dealing with the said emergency.

(By Order of the Governor)

sd/­ S. NARAYANA SWAMY,

Special Secretary to Government.

Now analysing the projections made by the petitioner, relying upon Section 2 (2) (b) of SAFEMA, we are of the view that they are baseless and without any force at all.

That apart in our considered opinion, the question of jurisdiction of the competent authority under SAFEMA, if at all was a subject matter, ought to have been raised before the competent authority, the appellate authority and later the writ court and the appellate court, by the late Ahamed Koya. It is an admitted fact that Ahamed Koya did not raise the jurisdictional issue before any of the authorities who had occasion to adjudicate the issue of forfeiture of the property. If there was no detention order in accordance with the law existing then late Ahamed Koya was the most competent person to raise such a dispute. This we say also because, Ext. P3 order dated 15.04.1978 passed by the competent authority starts with the following Paragraph:

“Shri. P. S. Ahamedkoya was a detenu under the COFEPOSA Act, 1974. He is, therefore, a person within the meaning of Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.”

It was on the basis of Ext. P2 notice dated 30.10.1976 issued under Section 6(1) of the SAFEMA that the properties scheduled thereunder were forfeited. The appellants have thought of challenging the proceedings initiated by the respective competent authority after a period of 44 years from the date of Ext. P1 initial proceedings dated 16.08.1975. Therefore, even if there is any legality in the contentions advanced by the appellants, we cannot legally presume that at this distance of time, any documents would be available in order to ascertain the veracity of the submissions made in the instant writ petition and the writ appeal.

Taking into consideration the said aspects, we are of the view that the attempt made by the appellants is nothing but a futile exercise undertaken to recover the properties which are sold as per the provisions of the SAFEMA. Therefore, we do not think the appellants have made out any case for interference with the judgment of the learned single Judge as regards the issue of jurisdictional competency of the competent authority under Section 2(2)(b) of the SAFEMA.

Now coming to the second point raised by the appellants with respect to the constitutional validity of Section 2(2)(b) of the COFEPOSA, it is the contention of the appellants that there is no intelligible differentia in classifying Section 2(2)(a)(ii) and Section 2(2)(b) of SAFEMA. Section 2(2)(a)(ii) reads thus:

“(ii) who has been convicted under the Foreign Exchange Regulation Act, 1947 ( 7 of 1947), or the Foreign Exchange Regulation Act, 1973 (46 of 1973), of an offence, the amount or value involved in which exceeds one lakh of rupees; or”

But, fact remains, the constitutional validity of the provisions of SAFEMA was challenged before the Apex Court in Attorney General (supra) and the Apex Court has upheld the constitutional validity. However, the contention advanced by the learned counsel for the appellants is that in Attorney General (supra), the aspect of intelligible differentia in classification of the provisions of Section 2(2)(a)(ii) and (b) were not considered and therefore, it was open to the writ court to consider the same.

In our considered opinion, firstly appellants are not entitled to raise the constitutional validity of certain provisions of the SAFEMA to reopen a concluded proceedings under the aforesaid Act. It is true, the jurisdictional question in respect of a proceedings by and between the parties, can be raised at any stage of the proceedings, including execution proceedings. However, that is not the case at hand, because as we have pointed out above, the proceedings by and between the competent authority and late Ahamed Koya concluded as per the orders of the statutory authority as well as the judgments of the writ court and the writ appellate court. The attempt of the appellants is nothing but an attempt to reopen the proceedings by challenging the constitutional validity of a provision by contending that there is no intelligible differentia by classifying a convict and a detenu. We are afraid, if a writ court starts allowing concluded proceedings to be reopened on the basis of a challenge made to the constitutional validity of the provisions of an Act, irrespective of the finality attained to the proceedings, there won't be any end to any litigation.

Moreover, in Attorney General (supra), what we could gather is that the constitutional validity of the provisions of the SAFEMA was put to challenge; however, the same were upheld by the Apex Court. Though a contention is raised by the appellants that the instant question raised vis-a-vis the Constitutional validity was not considered in Attorney General (supra), we are unable to agree with the same, in view of the findings rendered by the Apex Court at paragraphs 35 to 42 and 56 of the the judgment and they read thus:

“42. The other case brought to our notice is in Union of India v. Manoharlal Narang [(1987) 2 SCC 241 : 1987 SCC (Cri) 311] , a decision rendered by a Bench comprising Khalid and Oza, JJ. The facts of this case are rather involved. Respondent, Manohar Lal Narang and one Ram Lal Narang were brothers. An order of detention under Section 3(1) of COFEPOSA was made against Ram Lal Narang on 19­12­1974. He challenged the same before the Delhi High Court in Writ Petition No. 10 of 1975 which was allowed on 30­4­1975 and the order of detention quashed. The Union of India preferred an appeal against the said order of the High Court to this Court along with an application for stay. On 1­5­1975, this Court declined stay but imposed certain conditions on the movement of Ram Lal Narang (later, the said appeal was dismissed for non­ prosecution). After the proclamation of emergency on the ground of internal disturbance on 25­6­1975, a fresh order of detention was made on 1­7­1975 against Ram Lal on the very same facts and grounds on which he was detained earlier. The said order of detention was challenged in Delhi Court in Writ Petition No. 115 of 1975 filed by a relative of Ram Lal but was dismissed on 25­11­1975. An appeal was preferred against the said order to this Court being Appeal No. 399 of 1977. At this stage, notice under Sections 6 and 7 of SAFEMA was issued against Ram Lal which he questioned in Delhi High Court in Writ Petition No. 720 of 1975. While the said writ petition was pending in Delhi High Court, Appeal No. 399 of 1975 pending in this Court came up for hearing and was disposed of saying that it would be open to Ram Lal to raise all such contentions as are available to him in Writ Petition No. 720 of 1975, notwithstanding the fact that those grounds were raised in Writ Petition No. 115 of 1975 (from which the said appeal No. 399 of 1975 arose). Writ Petition No. 720 of 1975 was heard and dismissed by the Delhi High Court against which Ram Lal filed SLP No. 9361 of 1982 wherein leave was granted and the appeal was numbered as CA No. 2790 of 1985 which was said to be pending on the date of the said judgment. An order of detention under Section 3 of COFEPOSA was made against the respondent, Manohar Lal Narang, as well on 31­1­1975. He was then in England. He was brought to India and detained. He challenged the same by way of WP No. 2752 of 1975 in the Bombay High Court which was allowed and the detention quashed on 8­7­1980. An appeal preferred to this Court against the said order was also dismissed. Thereafter, a show­cause notice was issued to Manohar Lal Narang on the ground that he is the brother (relative) of Ram Lal Narang, who was detained under Section 3(1) of COFEPOSA. It may be remembered that a writ petition questioning Ram Lal's detention under the order dated 1­7­1975 [evidently, an order of detention to which Section 12­A of COFEPOSA applied] was dismissed by the Delhi High Court (WP No. 115 of 1975) and even Writ Petition No. 720 of 1975 (in which he was allowed to raise all the available grounds against his detention) was also dismissed. From the facts stated above, it is clear that the basis of action under SAFEMA against Manohar Lal Narang was his brother Ram Lal's detention during the period of emergency, which detention was governed by Section 12­A of COFEPOSA. According to our opinion indicated hereinbefore, such an order can constitute a basis for taking action under SAFEMA. So far as the reasoning of the said decision is concerned, it is to the effect that the validity of such an order of detention can be questioned by the detenu or his relative, as and when such an order is sought to be made the foundation for taking action against them under SAFEMA. On that basis, the Court proceeded to examine the validity of the order of detention of Ram Lal and found that the said order is bad for non­application of mind to certain highly relevant and material circumstances. We must, however, say that the validity of an order of detention to which Section 12­A of COFEPOSA applied, could yet be examined even during the emergency on the touchstone of the law as it obtained during the operation of the Presidential Order under Article 359(1) — say on the ground that the provisions of Section 12­A were not complied with, or on other grounds, as may not have barred during the said period. But a person who could have so challenged the order of detention and yet chose not to do, cannot be allowed to do so when such an order of detention is made the basis for applying SAFEMA to him — this is for the reason that even if he is allowed to challenge the said order when he is served with the notice under Section 6 of SAFEMA, the challenge has to be examined with reference to the position of law as was obtaining at the time the said order was made and the law in force during the period the said order of detention was in operation. Same would be the position in the case of a person who challenged the order but failed in his challenge. Even in the case of a normal order of detention under COFEPOSA, the position would be the same. A person who did not challenge, (either by himself or through his next friend) the order of detention or challenged it but failed, cannot be allowed to challenge the order of detention when action is taken against him under SAFEMA.

That apart, on an analysis of the extracted portion of the judgment, it would show that the incompetency of the detention of a detenue under the COFEPOSA cannot be challenged collatterly in a proceeding of forfeiture under the SAFEMA.

To summarise:

(1) Parliament was perfectly competent to enact both the COFEPOSA and the SAFEMA.

(2) For the reasons given in the body of this judgment, we do not express any opinion on the validity of the 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule. We assume them to be good and valid. No arguments have also been addressed with respect to the validity of 42nd Amendment Act to the Constitution either.

(3) (a) An order of detention made under Section 3 of COFEPOSA, which was governed by Section 12­A thereof is yet an order of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA. Since the President had issued an order under Article 359(1) suspending Articles 14, 21 and 22, it became competent for Parliament, by virtue of clause (1­A) of Article 359 to enact Section 12­ A of COFEPOSA for the duration of and limited to the period for which the Presidential Order was in force. It was meant to achieve the purposes of emergency. Once Section 12­A is held to be a competent piece of legislation, orders of detention made thereunder (i.e. orders of detention to which the said provision applied) cannot be held to be not amounting to orders of detention for the purpose of and within the meaning of Section 2(2)(b) of SAFEMA, particularly in view of the express language of Section 2(2)(b) [including proviso (iii) thereto] — and the protection enjoyed by both the enactments by virtue of their inclusion in the Ninth Schedule to the Constitution.

(b) An order of detention to which Section 12­A is applicable as well as an order of detention to which Section 12­A was not applicable can serve as the foundation, as the basis, for applying SAFEMA to such detenu and to his relatives and associates provided such order of detention does not attract any of the sub­clauses in the proviso to Section 2(2)(b). If such detenu did not choose to question the said detention (either by himself or through his next friend) before the Court during the period when such order of detention was in force, — or is unsuccessful in his attack thereon — he, or his relatives and associates cannot attack or question its validity when it is made the basis for applying SAFEMA to him or to his relatives or associates.

(4) The definition of “illegally acquired properties” in clause (c) of Section 3 of SAFEMA is not invalid or ineffective.

(5) The application of SAFEMA to the relatives and associates [in clauses (c) and (d) of Section 2(2)] is equally valid and effective inasmuch as the purpose and object of bringing such persons within the net of SAFEMA is to reach the properties of the detenu or convict, as the case may be, wherever they are, howsoever they are held and by whomsoever they are held. They are not conceived with a view to forfeit the independent properties of such relatives and associates as explained in this judgment. The position of ‘holders’ dealt with by clause (e) of Section 2(2) is different as explained in the body of the judgment.

(6) Section 5­A of COFEPOSA is not invalid or void. It is not violative of clause (5) of Article 22.

(7) Petitioners have failed to establish that any of the provisions of SAFEMA are violative of Articles 14, 19 or 21 — apart from the protection they enjoy by virtue of the inclusion of the Act in the Ninth Schedule to the Constitution.”

We have also gone through the judgments pointed out by the appellants in the appeal memorandum and noted by us above, but what we could gather is that those are judgments rendered inter se by and between the parties when proceedings were subsisting, and it was on the basis of the existing proceeding by and between the parties that the principles of law specified thereunder were evolved. But, that is not the case in the appeal on hand. Since we have deliberated those issues in detail above, we do not propose to discuss the same again; however we have no hesitation to hold that those principles of law cannot be applied to the facts and circumstances involved in the case on hand.

Upshot of the above findings and observations is that, we are of the firm and considered opinion that the appellants have not made out any case of jurisdictional error or other legal infirmities justifying our interference with the judgment of the learned single Judge in an intra court appeal filed under Section 5 of the Kerala High Court Act.

Appeal fails and accordingly, it is dismissed.