TaxTMI 
TaxTMI 
2001 (7) TMI 1330
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....der the SAFEMA. It calls upon the petitioner to show cause why the property mentioned therein should not be forfeited. 2. The learned counsel for the Petitioner Mr. Maqsood Khan has challenged this Notice as it suffers from the vice of lack of jurisdiction and also the reasons shown therein which led to believe the authority to invoke the Section 6 of the Act is faulty and extraneous and the notice is, therefore, liable to be quashed. 3. The learned Central Government Pleader Mr. H. V. Mehta mainly makes two submissions. He submits that the Writ Petition is not maintainable as it is premature, Petitioner without submitting his explanation to the authority should not have come to this Court to quash the notice. He further submits that since the revocation of the Detention Order was under Section 11 of the COFEPOSA Act, it will not come in any of the circumstances for revocation mentioned in section 2(2)(b) of the SAFEMA. 4. We are not very much concerned about the facts which led the authority to believe. We are concerned only the jurisdictional aspect of the Notice. It is true that the Show Cause Notice itself shows that the order of detention was revoked. But as contended....
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....les relating to revocation. It reveals that two other detenues were also ordered to be detained on the same grounds by the Competent Authority. But those two detenues had approached Nagpur Bench of this Court in Writ Petition No. 142/99 and the Nagpur Bench of this Court has set aside that order on the ground of delays in two pockets, one in making proposal after the last statement recorded and secondly in passing the detention order. It was noticed by the Government that the name of the petitioner was surfaced in the statements of the other two co-accused on 16.10.1998 and the detention order was passed only on 22.3.1999. This Court has held with regard to the co-accused Shri Atul Gondia that there Is an inordinate delay in passing the detention order and the detention order was therefore set aside. Evidently the petitioner has not filed a Writ Petition to challenge the detention order. But his wife made a representation to the Government and following the same principle of undue delay as found by this Court the order of detention was revoked by the authority. We do not find that out of any extraneous consideration the order was passed by the Government in revoking the detention o....
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....d. Therefore according to us, the revocation order has to be given its full effect. 10. The Supreme Court in Attorney General for India v. Amratlal Prajivandas and others, has examined the validity of the SAFEMA and in paragraph 39 of the above judgment has quoted a passage from Vardarajan, J. a case where the order of this Court was examined, which was passed under Sections 2, 6 and 7 of SAFEMA which observed thus : Therefore, a valid order of detention under COFEPOSA is a condition precedent to proceedings being taken under Sections. 6 and 7 of SAKEMA cannot stand. Therefore, we have to consider whether the impugned order of detention dated 19.12.1974 under COFEPOSA is void and has to be quashed." 11. It is clear from the aforesaid passage that the provisions of SAKEMA can be Invoked only when a valid order of detention subsists or operated at the time of initiating the proceeding under SAFEMA. But here at the time of issuing Show Cause Notice the order of detention did not subsist. Therefore the SAFEMA proceedings cannot be initiated. At this juncture, we have to refer to a decision of a Single Bench of Gujarat High Court relied upon by the learned counsel Mr. Meh....
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....the General Clauses Act is a general provision how to interpret provisions of an enactment or regulation or rules where certain powers are conferred on certain authority to issue an order and the extent to which such power could be exercised. In doing so, such authority is conferred with power to modify, amend or to alter it. This power has been extended to the Detaining Authority or other authorities to revoke the order of detention in Section 11 of the COFPOSA. This position has been well clarified by the Supreme Court in Kamlesh kumar Ishwardas Patel v. Union of India & Ors.. At para 6 the Supreme Court observed thus : "Article 22(5) does not., however, indicate the authority to whom the representation is to be made. Since the object and purpose of the representation that is to be made by the person detained is to enable him to obtain relief at the earliest opportunity, the said representation has to be made to the authority which can grant such relief, i.e. the authority which can revoke the order of detention and set him at liberty. The authority that has made the order of detention can also revoke it. This right is inherent in the power to make the order. It is recog....