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Gujarat High Court
Judgename :M.C.PATEL, R.K.Abichandani
KANTILAL DAMODARDAS SHAH - Appellant
Versus
UNION OF INDIA - Respondent
L.P.A. 477 of 1997
Decided On : 04/26/2001
(A)
During emergency the fundamental rights are not suspended but only the remedies are suspended.
(B)
The remedies for the enforcement of fundamental rights which are not mentioned in the Presidential Order are not suspended and such rights can be enforced in the Court, even during emergency.
(C)
No law can be made under Art. 359(1-A) which may be inconsistent with any of the fundamental rights which are not mentioned in the Presidential Order issued under Art. 359(1). Any law inconsistent with any fundamental right not specified in the Presidential Order can be challenged in the Court even during emergency for enforcement of such fundamental right which is not mentioned in the Presidential Order and the pending proceedings made in respect of such fundamental rights as are not mentioned in the Presidential Order do not get suspended under Art. 359(1) during emergency period.
(D)
After the insertion of Art. 359(1-B) with effect from 20.06.1979, even the law not containing the requisite recital showing that it has nexus with the Proclamation of Emergency which is in operation, can be challenged on the ground that Art. 359(1-A) lifting the restriction will not operate in absence of such recital.
(E)
The proceedings in Courts challenging any law [other than the law made by Parliament whose legislative competence is enlarged in emergency by Art. 353(b)], on the ground of want of legislative competence are not affected by Arts. 358 and 359 of the Constitution even during emergency and the validity of any such law can be challenged on the ground of want of legislative competence.
(F)
The executive power of the Union extends to all the matters with respect to which the Parliament has power to make laws [See Arts. 73(1) and 353(b)]. During the emergency, the executive power of the Centre gets extended under Art. 353. The executive power of the State extends to matters with respect to which it has power to make laws, as provided in Art. 162. The executive action can be challenged even during the period when proclamation of emergency is in operation on the ground of want of jurisdiction or any ground which does not amount to seeking mere enforcement of the fundamental rights mentioned in the Presidential Order while it is operative, or for being contrary to the legislative provisions or being ultra vires the law conferring the power.
(G)
After the insertion of Clause (1-B) in Art. 359, no executive action which is not taken under any law containing recital as contemplated in Art. 359(1-B)(a) is immune from challenge on the ground that it is not authorised by Art. 359(1-A) read with Art. 359(1-B).
(H)
Article 13 in normal times takes away the legislative powers of the State (as defined in Art. 12 which includes Parliament and the Legislatures of each of the States) to make any law which is inconsistent with the fundamental rights. The fundamental rights are not suspended during emergency but the remedies are suspended under Art. 359(1), as noted above. Suspension of remedies alone would not have enabled the State to make law in breach of Art. 13 of the Constitution. This is why the provision removing such restriction to make law in respect of the rights mentioned in the Presidential Order was required to be made under Art. 359(1-A) of the Constitution. Otherwise, the challenge on the ground of the law being void under Art. 13 could have been entertained even during emergency, because, the fundamental rights are not suspended and the State has no power to make any law inconsistent with the fundamental rights which, if made, would have been void but for that restriction being removed temporarily by Art. 359(1-A) of the Constitution in respect of the inconsistent law. Therefore, even during emergency, the challenge against the validity of the law, which has a bearing on the aspect of want of legislative competence under Art. 13 which prevents any inconsistent law from being made, rather than on the enforcement of the fundamental rights, can be entertained by the Courts. If the inconsistent law falls within the ambit of Art. 359(1-A), then alone it will be immune, otherwise it may be declared void to the extent of the inconsistency which is not protected by Art. 359(1-A). All that Art. 359(1-A) [read with (1-B) after its insertion] does is to relax the rigour of Art. 13 which prohibits the State from making any law which takes away or abridges the rights conferred by Part III of the Constitution.
[Para 17]
(b) Constitution of India, 1950 — Part III, Arts. 14, 19, 21, 22, 13, 31-B, 352(1), 359(1), 358 and 359(1-B) — Amendments 38, 40, 42 and 44 — Ninth Schedule — Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (Central Act 13 of 1976) — Secs. 6, 7 and 2(2) — Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) — Secs. 5, 3, 12-A and 5-A — Res Judicata and constructive res judicata — Previous petition dismissed — Present petition filed on same subject matter, identical prayer and same cause of action — Held, barred by principles of res judicata and also constructive res judicata — A party cannot be allowed to litigate on the same issue time and again
( 1 ) THESE three appeals which raise common questions have been argued together.
( 2 ) LETTERS Patent Appeal No. 477 of 1997 has been directed against the judgment and order dated 26-12-1996 of the learned single Judge in Special Civil application No. 3477 of 1996 in which the petitioner had challenged the order of his detention which was made on 19-12-1974 and sought for a declaration that the detention order being void and illegal, no action could be taken against the petitioner and his relatives under the provisions of the Smugglers and Foreign Exchange manipulators (Forfeiture of Property) Act, 1976 (s. A. F. E. M. A. for short ). A copy of the order dated 19-12-1974 is at Annexure b and a copy of the communication of the grounds of the detention is at Annexure c to the petition.
( 3 ) THE petitioner (Kantilal Damodardas Shah) was ordered to be detained pursuant to the detention order dated 19-12-1974 made under Sec. 5 of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (c. O. F. E. P. O. S. A. for short ). According to the petitioner, the respondent no. 2 issued a notice under Sec. 6 of S. A. F. E. M. A. on 28-4-1979 which was received by him on 3-5-1979 stating that he had reason to believe that properties described in the Schedule to the notice were illegally acquired by the petitioner and called upon him as to why they should not be forfeited to the Central government under the Act. A copy of the reasons accorded for issuance of notice was also served on the petitioner. The description of the movable and immovable properties in respect of which the notice was given is contained in paragraph 3 of the petition. It is contended that the detention order made against him on 19-12-1974 was illegal and unconstitutional and since that order was bad in law, it cannot form the basis for proceedings against the petitioner or his relatives under the S. A. F. E. M. A. The petitioner had challenged the order of his detention on various grounds in Special Civil Application No. 2051 of 1979. However, the Constitution 42nd Amendment Act of 1976 made it impossible for the detenu to challenge the orders of detention on any of the grounds permissible under Part III of the Constitution. It is stated that after the powers of the Supreme Court and the High Courts were restored for examining the challenge against laws which contravened the provisions of Part III of the constitution, it became possible for the petitioner to challenge the said order of his detention on the ground of being violative of Art. 22 of the Constitution and the provisions of the C. O. F. E. P. O. S. A. It is stated that the challenge against the provisions of S. A. F. E. M. A. was now not open for the petitioner and, therefore, the petitioner was required to confine his attack to the detention order on the basis of the provisions contained in C. O. F. E. P. O. S. A. According to the petitioner, the earlier challenge against the order of his detention dated 19-12-1974 could not be pursued by him and could not be decided on merits by the High Court on account of the powers of the High Court being taken away by the Forty-Second Amendment made during the emergency. It is stated that his wife had filed Special Criminal Application No. 51 of 1975 challenging the provisions of Sec. 3 of C. O. F. E. P. O. S. A. and the detention order of the petitioner. However, that petition remained pending without disposal on merits on account of the situation arising out of declaration of emergency.
( 4 ) IN para 9 of the petition, it has been stated that when the earlier petitions filed by the petitioner and his wife came up for hearing, it was advised that on account of the powers of the High Courts and Supreme Court, to enforce the provisions of Part III of the Constitution, having been taken away, it would be better not to pursue the petitions at that stage till those powers were restored and that after restoration of the pow
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