UNION OF INDIA v. DHIRUBHAI GOKULDAS VORA — 1975 DIGILAW 383 (CAL)

SANKAR PRASAD MITRA, S. K. DUTTA ( 1 ) THE union of India and two other appellants have preferred an appeal against a judgment delivered by Mr. Justice Banerjee on the 24th November, 1975, adjourning the hearing of an application under Article 226 of the Constitution sine die on the ground of Proclamation of Emergency. This is Appeal No. FMAT 3261 of 1975. In this appeal the Union of India has made an interlocutory application praying that the order of Mr. Justice Banerjee be stayed and an earlier order of Mr. Justice Janah made on the 6th January, 1975 be vacated. ( 2 ) ON 7 May, 1971, the Maintenance of Internal Security Act (Act 26 of 1971), hereinafter called 'misa' came into force. There was a Proclamation of Emergency under Article 352 of the constitution by the president of India on December 3, 1971. By Amendment Ordinance No. 11 of 1974 promulgated on the 17th September, 1974, smuggling activities were included in the list of prejudicial acts envisaged by MISA. A Presidential order was passed under Article 359 on the 16th November, 1974, suspending for six moths the right to move any Court as also all proceedings pending in any Court with respect to order s of detention made or to be made under MISA for enforcement of rights conferred by Articles 14, 21 and clauses (4), (5), (6) and (7) of Article 22. ( 3 ) ON December 19, 1974, the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called 'cofeposa') came into force. There was another Presidential Order under Article 359 almost on the same terms relating to 'cofeposa'. The order was originally for a period of six months but was later extended on the 20th June, 1975 to 12 months. ( 4 ) ON 19/20 April, 1973, before the amendment of MISA and before the coming into operation of 'cofeposa' searches and seizures were conducted in the premises of one Tilu Das and a Steel trunk was seized. This steel trunk contained 797 pieces of smuggled wrist watches valued at Rs. 1. 60 lacs including certain incriminating documents. The documents were examined by Hand-Writing Experts whose opinion was that the respondent Dhirubhai Gokuldas Vora was involved in the Act of smuggling. This steel trunk contained 797 pieces of smuggled wrist watches valued at Rs. 1. 60 lacs including certain incriminating documents. The documents were examined by Hand-Writing Experts whose opinion was that the respondent Dhirubhai Gokuldas Vora was involved in the Act of smuggling. ( 5 ) ON January 10, 1974, there was an adjudication order by the Customs Authorities confiscating the wrist watches and a penalty of Rs. 25,000/- was imposed on Vora. On the 21st October, 1974, an order of detention under 'misa' was passed against Vora. The order could not be served on him as he was absconding. It is common case that this order of detention is no longer in force particularly in view of the subsequent enactment of COFEPOSA. ( 6 ) ON January 6, 1975, on an application under Article 226 of the Constitution, Mr. Justice Janah issued a Rule and passed an interim order of injunction restraining the Union of India and other respondents, their agents and subordinates from arresting the petitioner, Vora, under COFEPOSA or under any other Preventive Detention Act. His Lordship, however, gave liberty to the respondents to apply for variation of or the vacating of the interim order upon notice to the petitioner, Vora. In March, 1975, an application was made for vacating the interim order of Mr. Justice Janah. While this application was pending, the President of India proclaimed Emergency under Article 352 on the 25th June, 1975. Two days thereafter, that is, on the 27th June, 1975, a Presidential Order under Article 359 was passed which is set out below: "published IN THE GAZETE ON INDIA EXTRAORDINARY PART II, SECTION 3 SUB SECTION (i ). No. 11/16013/75-S and P/d. II GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS. New Delhi, the 27th June, 1975. ( 7 ) G. S. R. 361. (E ). No. 11/16013/75-S and P/d. II GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS. New Delhi, the 27th June, 1975. ( 7 ) G. S. R. 361. (E ). In exercise of the powers conferred by clause (i) of Article 359 of the Constitution the President hereby declares that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by article 14, article 21 and article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the abovementioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (I) of article 352 of the constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. The order shall extend to the whole of the territory of India except the State of Jammu and Kashmir. This order shall be in addition to and not in derogation of any order made before the date of this order under clause (1) article 359 of the Constitution. Sd/- S. K. Khurana secretary. " ( 8 ) ON the 1st August, 1975, certain amendments to 'cofeposa' were made which do not appear to be relevant for our purposes. On the 10th August, 1975 cofeposa' was included in the 9th Schedule by the Constitution 39th Amendment Act of 1975. This is now Item No. 104 in the 9th Schedule. ( 9 ) AGAINST this background Mr. Justice Banerjee passed His Lordship's order of the 24th November, 1975, holding that in view of the Presidential Order under Article 359 of the 27th June, 1975, the right to move the Court for enforcement of fundamental rights has been suspended and the entire application made by Vora would be adjourned sine die. The result is that the order of injunction granted by Mr. Justice Janah still remains in force. The present appellants, namely, the Union of India and the Customs Authorities, are aggrieved by the order of Mr. Justice Banerjee. ( 10 ) IT would be convenient at this stage to set out the prayers in the original petition of Vora. The result is that the order of injunction granted by Mr. Justice Janah still remains in force. The present appellants, namely, the Union of India and the Customs Authorities, are aggrieved by the order of Mr. Justice Banerjee. ( 10 ) IT would be convenient at this stage to set out the prayers in the original petition of Vora. The prayer are as follows : (A)a writ in the nature of Mandamus commanding the respondents to act and proceed in accordance with law and directing the respondents to act and proceed in accordance with law and directing the respondents to rescind, recall, cancel and/or withdraw and/or withdraw and/or revoke the proclamation of Emergency in the year 1971 under Article 352 of the Constitution of India. (B)a writ in the nature of Mandamus or other appropriate writs or orders or directions commanding the respondents to act and proceed in accordance with law and to rescind, recall, cancel and/or withdraw the purported order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, against the petitioner passed by the respondents and to forbear from taking action under the provisions of the said Act against your petitioner. (C)a writ in the nature of Certiorari calling upon the respondents to transmit entire records relating to the order of detention under the said Act or any other order passed by the Respondents under the said Act so that conscionable justice may be rendered by setting aside and quashing the same. (D)a writ in the nature of prohibiting the respondents form servation of Foreign Exchange and of the Constitution. (E)a declaration that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is ultra vires or violative of Articles 14, 19, 21 and 22 of the Constitution. (F)a declaration that the proclamation of emergency in the year 1971 and its continuation is void and ultra vires the Constitution. (G)a declaration that the order dated 25th December, 1974 issued by the President of India Under Article 359 (1) of the Constitution of India is void and ultra vires and/or violative of Article 14 of the Constitution of India. (H)a rule to issue in terms of prayer (a) (b) (c) (d) (e) (f) and (g ). (G)a declaration that the order dated 25th December, 1974 issued by the President of India Under Article 359 (1) of the Constitution of India is void and ultra vires and/or violative of Article 14 of the Constitution of India. (H)a rule to issue in terms of prayer (a) (b) (c) (d) (e) (f) and (g ). (I)interim injunction restraining the respondents, their agents and subordinates from arresting your petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, or under any other Preventive Detention Act or orders. (J)any other writ or writs, order or orders and/or direction or directions as may be deemed fit and proper. (K) costs of and incidental to this application. "mr. Justice Janah has passed an order of injunction in terms of clause (i) of the prayers. ( 11 ) WE find from page 59 of the paper book that Counsel appearing for the State Government before Mr. Justice Banerjee had categorically stated that the State Government had not yet formed any opinion about the detention of the petitioner, Vora. It has also been stated before us by Mr. Charkraborty, appearing for the appellants, that no order of detention under 'cofeposa' has yet been passed against the petitioner, Vora. In these circumstances, clause (b) of the prayers aforesaid made by Vora cannot be allowed. Since clause (b) of the prayers is not maintainable, the order of injunction passed in terms of clause (i) of the prayers is also beyond the scope of the application. ( 12 ) SO far as the other prayers are concerned, it is obvious that this Court has no jurisdiction to make any of the orders asked for. The Court cannot pass an order in terms of clause (a) rescinding, recalling or canceling the Proclamation of Emergency in 1971. The Court cannot pass an order in terms of clause (c) because there is no order of detention at all. A writ in the nature of prohibition in terms of clause (d) cannot be issued in the absence of any order or orders of detention. The Court cannot make a declaration in terms of clause (e) that the 'cofeposa' is ultra vires or violative of Articles 14, 19, 21 and 22 of the Constitution in view of its inclusion in the 9th Schedule. The Court cannot make a declaration in terms of clause (e) that the 'cofeposa' is ultra vires or violative of Articles 14, 19, 21 and 22 of the Constitution in view of its inclusion in the 9th Schedule. The Court cannot declare the Proclamation of Emergency in 1971 and its continuation void and ultra vires in terms of clause (f ). On the same ground clause (g) of the prayers has to be refused. ( 13 ) THE position, therefore, is that in the context of the facts of the present case particularly in view of the different enactments and Presidential orders referred to above, the entire application of Vora under Article 226 of the Constitution is bound to fail and no interim order in respect of that application could be passed by Mr. Justice Janah. ( 14 ) MR. Ghosh, appearing for Vora, contends that in an appeal against the order of Mr. Justice Banerjee made on the 24th November, 1975, the appellants cannot ask for the variation or the vacating of the interim order of injunction of Mr. Justice Janah on the 6th January, 1975. He contends further that the interim order was communicated to the respondents on the 7th January, 1975. They did not prefer any appeal against the interim order within 30 days. The appeal became barred by limitation. Their application to Mr. Justice Banerjee for vacating the order was, therefore, not maintainable. ( 15 ) WE have already said that Mr. Justice Janah by His Lordship's order of the 6th January, 1975, gave liberty to the respondents to move the Court for having the order varied upon notice to the petitioner. Pursuant to this liberty, the respondents made an application in March, 1975 which was disposed of by Mr. Justice Banerjee. The contentions of Mr. Ghosh, therefore, are of no substance. If this Court is not inclined to agree with the view of Mr. Justice Banerjee this Court cannot only set aside his Lordship's judgment but also vacate the order of injunction passed by Mr. Justice Janah. ( 16 ) MR. Ghosh contends further that the appeal itself it not maintainable, because Mr. Justice Banerjee has merely adjourned the application sine die. In our view, the effect of Mr. Justice Banerjee's order is indefinite suspension of the application for vacating the interim order. Justice Janah. ( 16 ) MR. Ghosh contends further that the appeal itself it not maintainable, because Mr. Justice Banerjee has merely adjourned the application sine die. In our view, the effect of Mr. Justice Banerjee's order is indefinite suspension of the application for vacating the interim order. It is in the nature of a final order and as such the order is appealable. Moreover, Mr. Justice Banerjee upon consideration of the rival contentions of the parties on the relevant Articles of the Constitution as well as on the relevant Statutes and Notifications had come to the conclusion on merits that the application is a decision on merit which in our opinion, is appealable. ( 17 ) THE next contention of Mr. Ghosh is that in the original application under Article 226 of the Constitution namely, Civil Revision Case No. 14 (W) of 1975, there were six respondents, namely, (1) the Union of India, (2) the State of West Bengal, (3) Secretary, Home (Special) Department, Government of West Bengal, (4) Commissioner of Police, Calcutta, (5) Collector of Customs and (6) Collector of Central Excise and Customs. Mr. Justice Janah passed the order of injunction against all the respondents. But the appellants before us are only three, namely, (1) the Union of India, (2) the Collector of Customs, and (3) the Collector of Central Excise and Customs. Mr. Ghosh says that if we vacate the order of injunction which the petitioner Vora obtained from Mr. Justice Janah it can be vacated only with respect to the three appellants but it would continue as against the other parties referred to above. Reliance is placed on Article 928 at page 438 in Halsbury's Law of England, Third Edition, Volume 21. The Articles says:"where an injunction has been granted against two or more persons, and one of them applied to discharge it, the order will be made only as to the party applying. "reliance is also placed on Woodroffe's "the law relating to Injunction," Fifth Edition, at page 148. The learned author observes :"upon a motion being made to dissolve an injunction, the Court will either absolutely dissolve it or continue it to the hearing, according to the merits of the case as shown by the pleadings and evidence. But each of the parties restrained must move to dissolve and the Injunction will not be dissolved as to those not moving. But each of the parties restrained must move to dissolve and the Injunction will not be dissolved as to those not moving. " ( 18 ) IN our judgment, these principles do not apply to the instant case. Here we are dissolving the injunction on the ground that the petitioner, Vora had no cause of action at all and was not entitled to any of the reliefs he had prayed for in the petition. In these circumstances, there is no question of continuance of the order of injunction against parties who have not applied for having it vacated. ( 19 ) THERE is one other aspect of the matter which we have to advert to in view of the arguments advanced before us. Article 359 (i) of the Constitution provides :"where a Proclamation of Emergency is in operation, the President may by order declared that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. " ( 20 ) IN the instant case there was Proclamation of Emergency by the President on the 25th June, 1975. Two days thereafter, on June 27, 1975, the President by an order made under clause (i) of Article 359 declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above-mentioned rights shall remain suspended for the period during which the Proclamation of Emergency made under clause (1) of Article 352 of the Constitution on the 3rd December, 1971 and on the 25th June, 1975 are both in force. ( 21 ) IT is in view of this order of the President of India dated the 27th June, 1975, that Mr. Justice Banerjee has adjourned the application sine die. ( 22 ) WE have already said that the COFEPOSA was included in the 9th Schedule by a Constitutional amendment which came into force on the 10th August, 1975. ( 21 ) IT is in view of this order of the President of India dated the 27th June, 1975, that Mr. Justice Banerjee has adjourned the application sine die. ( 22 ) WE have already said that the COFEPOSA was included in the 9th Schedule by a Constitutional amendment which came into force on the 10th August, 1975. The moment it goes into the 9th Schedule, Article 31b of the Constitution becomes applicable to it. Article 31b in part III of the Constitution prescribes:"without prejudice to the generality of the provisions contained in Article 31a, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. " ( 23 ) THE effect, therefore, is that after inclusion 'cofeposa' in the Ninth Schedule any action taken under it cannot be challenged on the ground of infringement of fundamental rights. There is, therefore, no justification for adjourning the original application under Article 226 sine die in view of the Proclamation of Emergency. It may be that an order of detention passed under 'cofeposa' in spite of its inclusion in the Ninth Schedule may be challenged on the ground that the conditions laid down in the Act have not been complied with or on the ground of malafides: This aspect of the matter does not arise for out consideration or decision in this inasmuch as in the present case there is yet no order of detention at all. From this point of view as well the order of injunction passed on the 6th January, 1975 cannot be sustained. ( 24 ) FOR all the reasons aforesaid, this application is allowed. The order of Mr. Justice Banerjee dated the 24th November, 1975 is stayed. The order of Mr. Justice Janah dated the 6th January, 1975, granting an interim injunction is also vacated. There will be no order as to costs. ( 24 ) FOR all the reasons aforesaid, this application is allowed. The order of Mr. Justice Banerjee dated the 24th November, 1975 is stayed. The order of Mr. Justice Janah dated the 6th January, 1975, granting an interim injunction is also vacated. There will be no order as to costs. Salil Kumar Datta, J. : I agree. Appeal allowed.