Dismissed

Gulbanu Hassanali Rupani and Anr. v. the Union of India and Anr.

Bombay HC28 Sept 2012WP/1609/2012

Case brief

AI extract

What is this about?

Petitioners filed a Criminal Writ Petition challenging the forfeiture of a property held in one of their names under NDPS Act orders despite earlier unsuccessful challenges before the same High Court and SLP dismissal. The court held that finality of judgments barred retrial of same grounds.

What the court decided

AI extract

Gulbanu Hassanali Rupani and Anr. Vs the Union of India and… — Narcotics (NDPS) | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1609 OF 2012

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1.Smt.Gulbanu Hassanali Rupani, Aged about 85 years, Occupation Retired Housewife, R/o.3^rd Floor, Zarina Lodge, TPS-IV, 4^th Road, Bandra (W), Mumbai – 400 050, Maharashtra. 2.Smt.Hasina S.Hemani, Aged about 55 years, Occupation : Housewife, residing at 3^rd floor, Zarina Launge, TPS-IV, 4^th Road, Bandra (W), Mumbai-400 050, Maharashtra. ...Petitioners Versus 1.The Union of India, through the Assistant Director, Narcotic Control Bureau, Exchange Building, 3^rd Floor, Ballard Estate, Mumbai – 400 038, Maharashtra. 2.The Competent Authority, SAFEMA/N.D.P.S., 3^rd Foor, `C' Wing, Mittal Court, Nariman Point, Mumbai, Maharashtra. 3.The State of Maharashtra .... Respondents …... Mr.K.M.Sangani for the Petitioners. Mr.Kiran Kandpile for Respondent No.1. Mr.A.S.Gadkari, A.P.P. for the Respondent No.3. …...

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CORAM: A.M. KHANWILKAR & R.Y. GANOO, JJ.

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JUDGMENT RESERVED ON: SEPTEMBER 14, 2012 JUDGMENT PRONOUNCED ON : SEPTEMBER 28, 2012

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JUDGMENT (Per A.M. Khanwilkar, J.):

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This petition, under Article 226 of the Constitution of India, filed by the petitioners, essentially takes exception to the notice issued by the Intelligence Officer dated 12.9.1994, freezing and seizure of residential flat bearing No.602 on the 6^th floor, Pearl Harbour, Plot No.91, Tulsiwadi, Mazgaon, Mumbai-400010 allegedly owned by and belonging to petitioner No.1 as a consequence of detention order dated 4.2.1994 against her son Feroze Rupani. The petition also challenges the order passed by the Competent Authority, NDPS, Mumbai dated 19.6.1996 under section 68I and dated 26.9.1997 in No.CA/BOM/NDPS/1/94 under section 68K of the Narcotic Drugs and Psychotropic Substances Act, 1988.

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The Petition also challenges the order dated 19.6.1996 passed by the Appellate Tribunal for Forfeited Property, New Delhi in FPA No.NDPS-20/BOM/1996. Further, the petitioners pray for setting aside the orders passed by this Court in two Criminal Writ Petitions filed by

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the petitioners dated 23.7.1999 in Writ Petition (Criminal) No.1281 of 1997 and dated 26.8.1999 in Writ Petition (Criminal) No.1365 of 1999.

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In substance, it is prayed that the seizure order followed by forfeiture of the said residential flat of the petitioner No.1 be set aside and the possession thereof be handed back to the petitioners.

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This petition is resisted by the respondents. Preliminary objection about the maintainability of this petition is raised on the ground of locus of the petitioners and also on the ground of delay and laches in challenging the impugned orders dated 19.6.1996 and 19.8.1997 by this petition filed in April, 2012. Further, also because the impugned actions of the Appropriate Authority qua the said residential flat initiated have attained finality with the dismissal of successive Writ Petitions filed by the petitioners including on account of those decisions having been upheld by the Apex Court consequent to the dismissal of the Special Leave Petition filed by the petitioners against the decision of this Court in the Writ Petition No.1281 of 1997 as also Writ Petition No.1365 of 1999 (which was treated as review petition). According to the respondents, it is not open to the petitioners to raise issues which could have been raised by the petitioners in the previous three rounds of proceedings before this Court and including before the Apex Court in

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Special Leave Petition (Criminal) 3629-30 of 2000. According to the respondents, those grounds and moreso challenge to the impugned orders are barred by doctrine of constructive res judicata . Moreover, the decisions of the coordinate Bench of this Court in the three previous rounds of proceedings filed by the same petitioners, would be binding on this Court and it would not be open for us to examine the correctness or otherwise of the view already taken therein.

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To examine this preliminary objections, it may be appropriate to advert to the broad facts and the background in which the present petition has been filed by the petitioners. As aforesaid, the preventive detention order was passed against the son of the petitioner No.1 – i.e. Feroze Rupani. As a consequence of the said preventive detention action, notice was issued by the Intelligence Officer on 12.9.1994. No doubt, the notice was addressed to Feroze Rupani and other three persons who were tried as co-accused along with him. Copy of the said notice, however, was also marked to the petitioners herein, presumably, being family members and occupants of the property in respect of which freezing and seizure order was passed by the Authority in exercise of power u/s 68F of the NDPS Act. Further, the son of petitioner No.1 was eventually acquitted in the trial against him for offence punishable under

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NDPS Act. Be that as it may, order of forfeiture of the said property was passed by the Competent Authority in exercise of powers u/s 68-I of the Act on 19.6.1996. Thus, the said property came to be forfeited in terms of the order passed by the Competent Authority under SAFEMA (FOP) Act, 1996 and NDPS Act, 1985. Copy of the said order was not only marked to Feroze Rupani but also to both the petitioners before this Court. Both the petitioners along with Feroze and one other were shown as persons affected due to the said proceedings and had contested the same. As a consequence of the said order, show-cause notice u/s 68H was issued to the said Feroze on 19.6.1996. Pertinently, the petitioners filed Appeal u/s 68-O of the Act against the decision of the Competent Authority dated 19.6.1996. That Appeal came to be dismissed by the Appellate Tribunal on 19.8.1997. Subsequent thereto, the Competent Authority passed further order u/s 68K calling upon the petitioners to pay Rs.17,68,895/- within 30 days and redeem the forfeited property, i.e., Flat No.602, 6^th floor, Pearl Harbour, Plot No.91, Tulsiwadi, Mazgaon, Mumbai-400010. This communication was addressed to petitioner No.1. The petitioners, therefore, filed writ petition in this Court being Criminal Writ Petition No.1281 of 1997. Besides the petitioners herein, Iqbal Hussain Hassan Ali was also named as petitioner in the said petition. The relief claimed in the said Writ Petition reads thus:

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“11. …. The petitioners therefore prays:-

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(a) that the rule be issued;

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(b) The impugned order issued by the respondent freezing/seizing be quashed and set aside.

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(c) That the writ of mandamus or any other appropriate writ/direction or orders be issued to the respondent to release the properties as mentioned in Exhibit-II, III & IV to the petitioners.

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(c-i) Pending the hearing and final disposal of this writ, petition the impugned order of the competent authority passed on 26^th September, 1997 be stayed.

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(c-ii) The amount of Rs.76,215/- lying in the account of Competent authority be transferred to any nationalized bank in the name of Mrs.Hasina S. Hemani and the bank be directed not to allow encashment till the disposal of this writ petition.

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(d) Any such other and further reliefs as this Hon'ble Court may deem fit and proper be granted.”

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From the reliefs as prayed in that Writ Petition, it is obvious

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that the petitioners had challenged action of the respondents not only of freezing / seizure of the said property but also of forfeiture thereof and for a Writ of Mandamus against them to release the properties referred to in exhibits (II), (III) and (IV). It is, thus, indisputable that all aspects and contentions available to the petitioners to challenge the impugned actions/order passed (which are impugned in the present petition), on the grounds which are now raised in the present petition could have been pursued in that petition. We may now straightaway advert to the judgment of this Court dated 23.7.1999, whereby the said Writ Petition

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came to be dismissed by the Division Bench of this Court. The same

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reads thus:

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“None for the petitioners.

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While admitting in ground No.(vi), on page 7 in the petition that the order of detention was passed under the NDPS Act and he was acquitted for an offence under the said Act, he claims that the notice of seizure and forfeiture of properties on account of detention should bow (sic now) be quashed and set aside.

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As can be seen from section 68-A of the said act. Clause 2(c) would clearly cover the case when there is detention under the prevention of illicit traffic in narcotics drugs and psychotropic substances act, 1988 which has been carried out all throughout, obviously, the order of forfeiture can be passed. It is not that the authorities under the said act have not given any opportunity to the petitioner. The appellate authorities as well as detaining authority have considered the case and whatever suitable remedy would be given by modifying the initial order that has been granted. A detailed affidavit in reply on behalf of the respondent clearly bears out the same. It is filed by the inspection officer of the Competent Authority, Mr.A.A.Dias, in our opinion, therefore, there is no substances in the matter.

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Petition is rejected, Rule is discharged accordingly.”

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The fact that the said Writ Petition was proceeded in

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absence of the Advocate for the Petitioners, does not mean that the questions, raised by the Petitioners in the said Writ Petition, to challenge the impugned actions/orders, passed by the Respondents, were not considered by the Court on merits. On a bare perusal of the judgment, it is noticed that the Court answered the point in issue on merits and found

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that the Petitioners were given sufficient opportunity by the concerned Authorities, before taking the impugned action. Further, the Court held

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that there was no infirmity in the impugned actions/orders. The matter does not rest at that. The Petitioners filed another Criminal Writ Petition in this Court, being WP (Cri) 1365/1999. The reliefs claimed in this Writ Petition were no different than the earlier Writ Petition, which was already dismissed. Even in this Writ Petition, both the Petitioners, along with Iqbal Hussain Hasanali were named as Petitioners. The relief claimed in this Petition reads thus:

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“(a) that the rule be issued:-

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(b) The present petition be treated as review petition in writ petition no. 1281/1997 in view of Supreme Court's Judgment AIR 1971 SC 2162.

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(c) That the impugned order issued by the respondent freezing/seizing of properties of the petitioners be quashed and set aside.

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(d) That appropriate writ/direction being writ in the nature of mandamus or certiorari or any other writ in the nature of mandamus or certiorari be passed and the impugned orders issued by the respondents in respect of operations/actions under section 68 F and Section 68 of NDPS Act for freezing/seizing of properties of the petitioners under section 68-I of NDPS Act be quashed and set aside.

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(e) That the provisions of Section 68-H of NDPS Act be declared ultra virus in consideration of Section 68-C which are violating fundamental rights of petitioners under articles 21, 22 of the constitution of India.

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(f) Pending the hearing and final disposal of this writ petition the impugned order of the competent authority passed on 26^th September, 1997 be stayed.

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(g) That the writ of mandamus or any other appropriate writ/direction/orders be issued to the respondents to released the properties as mentioned in Exhibits-II and IV to the Petition.

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(h) That the amount of Rs. 76,215/- lying the account of competent authority be transferred to any nationalized bank in the name of Rs. Hasina S. Hemani and the bank be directed not to allow encashment till the disposal of this petition.

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(I) For such other and further reliefs/order as the Hon'ble Court may deem fit and proper be passed in favour of petitioners.”

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As aforesaid, once again, the Petitioners challenged the

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actions under Section 68F and the freezing/seizure of the said property under Section 68I and under Section 68H. In fact, the Petitioners also challenged the validity of Section 68H and 68C of the Act. This Writ Petition was treated as Review Petition, as prayed in prayer clause (b). The same was heard by the same Division Bench, which had occasion to dispose of the first Writ Petition filed by the Petitioners. On this occasion, the Petitioners were represented by the Advocate, who is now appearing even in the present Writ Petition. The Court rejected the said Petition for the following reasons:

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“1. So far as the review petition is concerned, we do not find any merit in it. The Ld. Advocate has tried to argue the same but all that he was doing was arguing the same on the merits of the matter and therefore could not point out any error apparent on record invoking exercise of review power in relation to the order dated 23^rd July, 1999. the application is therefore rejected.

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In the alternative, it was submitted that the petitioner is a old lady of 85 years and her family members will be pt to great difficulties if the time to vacate the suit premises is not granted. Strictly speaking, as per our order dated 23^rd July, 1999, the petitioner and her family members were aware that

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they have to vacate the suit premises by 15^th October, 1999. However, keeping in mind the fact that the petitioner who is a old lady at an advance age will have to vacate the suit premises along with her family members, the following order is passed.

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On a condition that within two days i.e. by 16^th October, 1999, an undertaking duly approved by learned counsel for the respondents being submitted in court, the suit premises shall be allowed to remain with the petitioner and she along with her family members shall not vacate the same till 15^th January, 2000.

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Similar under taking shall be given by all adult members of the petitioners family. The petitioner shall take special care to mention in her undertaking the details as to the members of her family including qua the relationship with her in order to avoid all future difficulties. The petitioner shall also declare that she is the sole and exclusive owner of the property and there are no other claimants and the same shall be accepted by all adult members of her family in their respective under takings. In failure to submit their respective undertakings, it is open for the respondent department to proceed under the original order of forfeiture.

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5. Accordingly, the application stands disposed off.”

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It is admitted position that the Petitioners did not stop at that

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but, took the matter before the Apex Court by way of SLP (Cri) 362930/2000, challenging the judgment of Division Bench of this Court, dated 23^rd July, 1999 and 14^th October, 1099, passed in the two former Petitions, respectively. In other words, all the issues regarding the impugned actions/orders of the Respondents were subject matter of challenge before the Apex Court in the said Special Leave Petition. The said Petition, however, came to be dismissed vide order dated 10^th October, 2000. The order of the Apex Court reads thus:

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“There has been an inordinate delay of 278 days and 195 days in approaching this Court for which no sufficient explanation has been offered. The applications for condonation of delay are, therefore, rejected. The Special Leave Petitions accordingly stand dismissed.”

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From the chronology of events adverted to above, it is amply clear that all the actions and orders of the Authorities were subject matter of challenge in the previous proceedings before this Court; and that challenge has been rejected on merits. A priori, finality must be attached to the impugned actions/orders of Respondents. Nevertheless, the Petitioners, once again, filed another Criminal Writ Petition in this Court being WP (Cri) No. 2694/2004, challenging the selfsame actions/orders of Respondents dated 19^th June, 1996 under Section 68(I), dated 26^th September, 1997 under Section 68(K) and against the order passed by the Appellate Tribunal. The reliefs claimed in the said Writ Petition read thus:

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“14. The petitioners, therefore, pray:-

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(a) That the rule be issued;

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(b) That the impugned order issued by the Competent Authority passed on 26^th September, 1997 be quashed;

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(c) That pending the hearing and final disposal of this Writ Petition, the impugned order of the Competent Authority passed on 29.09.1997.

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(d) Ad-interim stay in terms of prayer clauses (a) to (c);

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(e) That the Writ of Mandamus or any other appropriate Writ/direction or orders be issued to the Respondents to release

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the properties as mentioned in Annexure 'II', 'III' and 'IVI to the petitioners;

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(f) Any such other and further reliefs as this Hon'ble Court may deem fit and proper be granted;”

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This Writ Petition was heard by another Bench of this Court

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and by a speaking order, allowed to be withdrawn. The said order dated 7^th June, 2011 reads thus:

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“1 Though leave to amend was granted in this petition, the substantial prayer clause has not been amended during the last about more than five years. The relief prayed for in the substantial prayers is set out in prayer clauses (b) and (e) which reads as under.

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(b) That the impugned order issued by the Competent Authority passed on 19-6-1995 and 26^th September, 1997 and ATFP, New Delhi passed on 19-8-1997 be quashed and set aside,

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(d) That the Writ of Mandamus or any other appropriate Writ/direction or orders be issued to the Respondents to release the properties as mentioned in Annexure II, III and IVI to the Petitioners.

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2 By the petitioners own contentions, the impugned orders dated 19^th June, 1995 (passed by the competent authority) and 19^th August, 1997 (passed by the appellate Tribunal) for freezing property under the NDPS Act were challenged at the first instance in Criminal Writ Petition NO. 1281/1997 and on 23^rd July, 1999, the petition came to be rejected by Division Bench of this Court by a Speaking Order and after dealing with the merits of the case. The petitioner, therefore, filed Review Petition No. 1365/1999 in Criminal Writ Petition No. 1281/1997 and the review petition was dismissed on 14^th October, 1999 on merits and after hearing both the parties.

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3 In this fresh petition filed after five years from 14^th October, 1999, the petitioner sought to challenge the very same orders which had reached finality as far as this Court is concerned. We have also noted that on 19^th January, 2005, this petition was dismissed for default. It was subsequently

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restored and on 28^th February, 2005, the learned Advocate for the petitioner sought leave to amend. In our considered opinion, this petition in the second round is mis-conceived and ought to have been dismissed at the very first instance as not maintainable.

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4 The learned advocate for the petitioner, on instructions, seeks leave to withdraw the petition. Leave granted and the petition is dismissed as withdrawn with liberty as is available in law.

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5 In view of the dismissal of the petition, Criminal Application No. 153/2007 is also disposed of.”

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(emphasis supplied)

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In the first place, the Petitioners could not have challenged the selfsame actions/orders of the Respondents by way of successive Writ Petitions and more so when the same had attained finality, after dismissal of the Special Leave Petition, by the Apex Court. Moreover, the abovesaid Writ Petition having been eventually withdrawn by the Petitioners, as is noted from paragraph 4 of the order, the question of filing appeal against that order did not arise. Nevertheless, the Petitioner No. 1 was advised to file Special Leave Petition, before the Apex Court, being SLP (Cri) No. 8397/2011. From the order dated 18^th November, 2011, passed by the Apex Court, it is noticed that the Petitioner withdrew even the said Special Leave Petition, with liberty to move the High Court for appropriate relief. The Special Leave Petition came to be dismissed as withdrawn. The order dated 18^th November, 2011, passed by the Apex Court reads thus:

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“UPON hearing counsel the Court made the following O R D E R

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Learned counsel for the petitioner seeks permission to withdraw the special leave petition with liberty to move the High Court for appropriate relief. Permission is granted. The special leave petition is dismissed as withdrawn accordingly.”

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The Petitioners herein have once again approached this

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Court by way of the present Writ Petition. The reliefs claimed in the present Writ Petition read thus:

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“8. It is, therefore, prayed :-

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(a) That this Hon'ble Court be pleased to issue Rule;

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(b) That this Hon'ble Court be pleased to issue appropriate writ or directions or Orders in the nature of Writ of Mandamus or Writ of Certiorari against the Respondents and all orders in the Petition passed by Respondents be revoked and set aside;

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(c) That this Hon'ble Court be pleased to set-aside and quashed orders Notice of Freezing/Seizing dated 12.09.1994, issued by Intelligence Officer at ANN. P-1;

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(i) dated 19.6.1996 in F. No. CA/BOM/NDPS/1/94-95 by the Competent Authority N.D.P.S. Bombay at Ann. P-2.

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(ii) That the order dated 19.6.1996 by the Appellate Tribunal for Forfeited Property, New Delhi in FPA No. ND-20/Bom/96, be set aside and quashed;

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(iii) That order dated 26.09.1997 in F. No. CA/Bomb/NDPS/1/94-95 passed by the Competent Authority N.D.P.S. Be set aside and quashed;

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(iv) That the Order dated 23.7.1999 in Criminal Writ Petition No. 1281 of 1997; be set-aside;

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(v) That the Order dated 26.8.1999 in Criminal Writ Petition No. 1365 of 1999, be set aside;

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(d) That the impugned order issued by the Competent Authority passed on 26^th September, 1997 be set aside and quashed;

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(e) That pending the hearing and final disposal of this Writ Petition the impugned orders in prayer clauses be stayed;

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(f) Ad-interim stay in terms of prayer clauses (a) to

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(d)

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(g) That the Writ of Mandamus or any other appropriate Writ/direction or orders be issued to the Respondents to release the properties namely Flat No. 602, Pearl Harbour, 6^th floor, Plot No. 91, Tulsiwadi, Mazgaon, Mumbai – 400010; And hand over said property to the Petitioners.

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(h) Any such other and further reliefs as this Hon'ble Court may deem fit and proper;”

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It may not be necessary for us to examine the preliminary objections about the locus of the present Petitioners or the issue of delay and laches in filing the present Writ Petition to challenge the impugned actions/orders of Respondents by way of Writ Petition filed in April, 2012. Inasmuch as, we find force in the preliminary objection of the Respondents, firstly, that the Petitioners are precluded from challenging the selfsame impugned actions/orders much less on the grounds which were otherwise available to them in the earlier round of proceedings (Writ Petitions), on the principle of constructive res-judicata . In any case, the doctrine of finality of the judgment would come in the way of the Petitioners, keeping in mind the maxim interest reipublicae ut sit

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finis litium , which means that it is for the public good that there be an end to litigation after a long hierarchy of appeals. The Apex Court, in the case of Indian Council for Enviro-Legal Action vs. Union of India reported in (2011) 8 SCC 161 restated the legal principle that the judgment of the Supreme Court has great sanctity and unless there are extremely compelling, overriding and exceptional circumstances, the judgment of the Supreme Court should not be distorted or disturbed, particularly in a case where review and curative Petitions have already been dismissed. In the present case, the Petitioners did not file any curative petition in the Apex Court. Indeed, the Petitioners filed review petition in the Apex Court after the dismissal of SLP against the decisions rendered by this Court in WP (Cri) 1281/1997 and 1365/1999. With the dismissal of the said Special Leave Petition and the Review Petition, the Petitioner was precluded from challenging the impugned actions/orders of the Appropriate Authority (Respondents). Moreso because, whilst dismissing the Special Leave Petition on 10^th October, 2000, the Apex Court did not give liberty to the Petitioners to do so nor such liberty was sought by the Petitioners from the Apex Court. As aforesaid, the Petitioners did not resort to curative Petition. Instead, the Petitioners, once again approached this court for the same cause of action by way of third Writ Petition, which, however, was advisedly

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withdrawn by them. Nevertheless, the Petitioners for reasons best known to them proceeded to file Special Leave Petition before the Apex Court being SLP (Cri) No.8397/2011 against the order of this Court allowing them to withdraw their third Writ petition. Notably, even the said SLP was withdrawn by the Petitioners on 18^th November, 2011. While doing so, the fact that the Petitioners sought liberty to approach the High Court for appropriate relief would not enure any new rights in favour of the Petitioners much less enable them to challenge the selfsame impugned actions/orders of Respondents, which have already attained finality on account of dismissal of previous Writ Petitions filed by them, including upholding of the order of dismissal of Writ Petitions, by the Apex Court in Appeal.

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Further, even if the Petitioners have sought liberty of the Apex Court, it would not mean that this Court can disregard the doctrine of finality of judgment of this Court in earlier Writ Petitions and more so of the Apex Court in SLP (Cri) 3629-30/2000, dated 10^th October, 2000. The Apex Court, in the above said reported decision has expounded that the exception to the general Rule of finality of judgment is whether apprehension of bias against the Judge who decided the earlier proceedings and the judgment adversely affected the Petitioner is made

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out or whether the circumstances incorporated in the review or curative Petition are such that it might inevitably shake public confidence in the integrity of administration of justice, if the earlier decisions of the Court are allowed to stand. In the present case, general Rule of finality of judgments must apply as it is not a case of bias of the Judges, who had decided the earlier round of Writ Petitions and more so, when their decisions were taken in appeal but confirmed by the Apex Court.

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Somewhat similar position can be discerned from the dictum of the Apex Court in the case of Karnataka Rare Earth v. Deptt. Of Mines & Geology reported in (2004) 2 SCC 783 . The Court observed that with the dismissal of the proceedings and appeal by the Apex Court, coupled with the fact that neither the appellant prayed for liberty nor the Supreme Court granted any liberty, the petitioner, could not, obviously, have invoked writ jurisdiction of the High Court inspite of the Judgment of the Supreme Court having attained finality.

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Besides the doctrine of finality of Judgment of the Apex Court, it would not be open for us to entertain challenge to the self-same impugned actions/order of respondents by way of successive writ petition. If the challenge to the impugned actions/orders of respondents was to be entertained, it would inevitably result in reopening the finding

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of fact and opinion recorded by the Coordinate Bench of this Court, which is binding on the parties and also on us. This is besides the legal bar of constructive res-judicata against the petitioners to agitate the grounds which they could have in the earlier round of writ petition. At any rate, the question of setting-aside the Judgment of the Co-ordinate Bench of this Court rendered in the earlier round of writ petition as prayed in this writ petition, cannot be countenanced.

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To get over this difficulty, the argument of the learned Counsel for the petitioners is that the impugned actions/order of the respondents are replete with fraud. In that, the freezing notice issued by the Authority was not as per the guidelines issued by the Central Government. That notice was issued without authority. Further, no show-cause notice was issued to the petitioner. The requirement of Section 68E and 68H have not been complied with, at all. Therefore, action under Section 68I could not be proceeded with. The forfeiture of the said property was contrary to the settled legal position and the exposition of the Apex Court on the subject matter. The impugned action violates the fundamental right of the petitioner under Articles 14 and 20 of the Constitution. Further, although the petitioners all along have been agitating these grounds, neither the Appropriate Authority nor

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the Appellate Authority and for that matter, the High Court, considered the objections regarding proceeding against the property owned and belonging to petitioner No.1, as the detenu had no nexus with that property. For all these reasons, the impugned actions/orders of respondents were hit by the vice of fraud and that was a good reason to disregard the same in toto – as non-est in the eye of law, for upholding the rights of the petitioner No.1, in particular, in the said property.

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We are of the considered opinion that each of these points could have been argued and raised by the petitioner in the first round of writ petition and in appeal before the Apex Court. Having failed to do so, it is not open to the petitioners to agitate the same merely because the inevitable result is of deprivation of possession and ownership of the said property. We fail to understand as to how the grounds now pressed into service can be said to be fraud played by the Authorities for taking the impugned action or passing impugned orders. Assuming that the points now urged have not been considered by the Authorities or by this Court in the earlier round of writ petitions and can be said to be fatal, vitiating the entire proceedings, there was no reason why the petitioners were advised to withdraw the previous writ petition (Cri.) No.2694/2004. For, these grounds could have been pursued by the petitioners at least in that

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writ petition, if it was permissible in law. As aforesaid, the petitioners not only withdrew that writ petition but went on to withdraw the SLP which was filed before the Apex Court against the order passed therein. Suffice it to observe that it is not open to the petitioners to agitate the grounds which are now urged in this petition, as the same could have been urged by them in the previous round of proceedings before this Court as also before the Apex Court in the SLP filed by them.

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Realising this difficulty, in the alternative, the petitioners contend that the petitioners would not pursue the grounds urged in this writ petition if the Court were to direct the Authorities to consider giving further time to the petitioners to pay the fine amount in lieu of forfeiture in exercise of powers under Section 68K of the Act. Although this contention seems to be attractive at the first blush, will have to be negated for the reasons already recorded hitherto. Inasmuch as, the order passed under Section 68K of the Act dated 26^th September, 1997 was subject matter of challenge in the earlier round of writ petitions and was passed much before the proceedings culminated with the dismissal of SLP by the Apex Court. No liberty was sought by the petitioners nor the Apex Court has granted liberty to the petitioners to pursue the said plea after the Supreme Court Judgment dated 10^th October, 2000 attained

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finality. In the circumstances, even this argument cannot be countenanced.

¶172

The Counsel for the petitioners, however, placed reliance on the decision of the Apex Court in the case of Aslam Mohd. Merchant vs. Competent Authority reported in 2008 Cri.L.J. 3621 , in particular, paragraphs 20, 31 and 33 thereof to contend that the impugned actions/orders of respondents are in the teeth of the legal position expounded in this decision. For the reasons already noted, it is not open to the petitioners to raise those grounds in the present writ petition, much less, this Court cannot examine those grounds. The Counsel for the petitioners had relied on the decision of the Apex Court in the case of Calcutta Discount Co.Ltd. vs. Income-tax Officer, Companies District I, Calcutta & Anr. reported in AIR 1961 SC 372 , in particular, paragraph 6 thereof to contend that it was the duty of the Authorities to disclose full and true material facts to the Court. In the reply affidavits filed in the earlier round of writ petitions on behalf of the Authorities, they failed to highlight the omissions which were fatal to the continuation of action of forfeiture of the said property, which was owned and possessed by petitioner No.1.

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Reliance is also placed on the decision of the Apex Court in the case of United India Insurance Co.Ltd. v. Rajendra Singh & Ors. reported in (2000) 3 SCC 581 that when it is a case of fraud on Court, the technicalities of constructive res-judicata would not come in the way of disregarding the previous decision of this Court between the parties on the same subject matter. Reliance is also placed on the decision in the case of S.P.Chengalvaraya Naidu (Dead) By Lrs. vs. Jagannath (Dead) by Lrs. & Ors. reported in (1994) 1 SCC 1 – that Judgment obtained by non-disclosure of relevant and material documents with a view to obtain advantage, amounts to fraud. Reliance is also placed on the decision of the Apex Court in the case of Meghmala & Ors. vs. G.Narasimha Reddy & Ors. reported in (2010) 8 SCC 383 which takes the view that an act of fraud on Court is always viewed seriously and if fraud is proved, the decision of the Court in the earlier round of proceedings by the petitioners should be no inhibition for this Court to disregard the same and answer the controversy on merits.

¶177

In view of the opinion recorded hitherto, none of these authorities would be of any avail to the petitioners. In our opinion, the petitioners cannot be permitted to pursue the grounds which are urged in this petition nor it is open for this Court to disregard the judgment and

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opinion of Coordinate Bench of this Court in the previous round of writ petitions and more so, because of finality attached to the Judgment of the Supreme Court in SLP (Cri.) 3629-30/2000 decided on 10^th October, 2000.

¶182

For the aforesaid reasons, this petition deserves to be dismissed. Hence, dismissed.

¶183

Although the respondents have pressed for granting exemplary costs as the present petition is frivolous and vexatious proceedings taken out by the petitioners, we refrain from passing any order in that behalf.

¶184

(R.Y.GANOO,J.)

¶185

(A.M.KHANWILKAR,J.)

¶186

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Gulbanu Hassanali Rupani and Anr. v. the Union of India and Anr.

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Gulbanu Hassanali Rupani and Anr. v. the Union of India and Anr.

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