LexBHAGUBHAI DHANABHAI KHALASI AND ANR. versus THE STATE OF GUJARAT AND ORS.
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'. i BHAGUBHAI DHANABHAI KHALASI AND ANR. v. THE STATE OF' GUJARAT AND ORS. APRIL 5, 2007 [S.B. SINHA AND MARKANDEY KA TJU, JJ.] Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974/Smugglers and Foreign Exchange Manipulations (Forfeiture of Property) Act, 1976: A B c An order of preventive detention and forfeiture of property passed by authority against appellant-Challenge to-Allowed by High Court- Authority cancelled the order but not releasing the,property-Writ petition dismissed by High Court observing that issues like legality of sale-deed, its execution or whether it is false or fabricated, cannot be decided in the D proceedings·under Article 226 of the Constitution of India-Petitioners were directed to initiate appropriate proceedings before appropriate Court- Letters Patent Appeal-Appellant admitting execution of sale deed by him in favour of third party and praying for withdrawal of appeal reserving right to agitate the grievance before appropriate forum-High Court. refusing to grant such permission-On appeal, Held: High Court did not entertain the E writ petition as it involved disputed question of fact-An appeal thereagainst filed by the appellant and not by the third party-High Court did not go into the correctness/otherwise of allegations/counter allegations-Access to justice is a human right-When there exists a ·right of a disputant, there must be a remedy-Since, Division Bench of the High_ .Court allowed the appellants to F withdraw the appeal they could not have been placed in a worse position- Hence, part of order of the Division Bench of the High Court refusing to grant leave to appellants to ventilate their grievance before an appropriate forum cannot be sustained-Constitution of India-Article 226. Doctrines: Doctrine of 'Ubi Jus ibi remedium '-Applicability of An order of preventive detention was passed against the appellant under the conservation of Foreign Exchange and Prevention c.f Smuggling Activities G 899 H )----- ' 900 SUPREME COURT REPORTS [2007] 4 S.C.R. A Act, 1974. ~ properties were forfeited under the Smugglers and Foreign ~ Exchange 'anipulators (Forfeiture of Property) Act, 1976. He filed a Writ Petition in the High Court questioning the order of detention as also the order passed under SAFEMA, which was allowed by the High Court. Later, an order was passed by the competent authority cancelling the Order whereby and B whereunder the properties were directed to be forfeited. Allegedly, the immovable properties so forfeited were not released. A writ petition was filed by the appellant impleading respondent No.4 as a party thereto, who had contended that the appellant had transferred the said property in his favour. " A Single Judge of the High Court dismissed the writ petition holding that whether the sale-deed is legal and the same has been executed by the c Petitioners or the same is false and fabricated, cannot be decided in proceedings initiated by the Petitioners under Article 226 of the Constitution of India. The petitioners were required to initiate appropriate proceedings before appropriate Forum. An intra-court appeal was preferred thereagainst under the Letters D Patent of the High Court by the appellant. He purportedly admitted that he had executed a deed of sale in favour of respondent No.4, and made a prayer for withdrawal of the appeal reserving right to agitate the grievances before -~ "' an appropriate forum. The Division Bench of the High Court while granting permission to withdraw the appeal refused to grant such permission. Hence the present appeal. E Appellant contended that the Division Bench of the High Court committed a manifest error in passing the said order, insofar as it failed to take into consideration that by preferring the appeal, the appellant could not have been put in a worse condition. F Respondent submitted that the appellant was guilty of making a I misrepresentation before the Division Bench of the High Court and filed a ,r large number of forged documents; and that the appellant having admitted the execution.of the sale deed in favour of respondent No. 4, he cannot be permitted to litigate before any other forum. G Partly allowing the appeal, the Court HELD: 1.1. The Division Bench of the High Court as also the Single Judge admittedly did not enter into the merit of the matter. Single Judge of the High Court noticed the respective
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