S.B. Sinha, J. - (1.) Leave granted.
(2.) An order of preventive detention was passed against the appellant under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, "COFEPOSA Act"). He had properties at Bhadarwal, in the district Jaipur and a fixed deposit receipt of Dena Bank. The said properties were forfeited under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short, "SAFEMA"). He filed a Writ Petition in the Gujarat High Court questioning the said order of detention as also the order passed under SAFEMA. The said Writ Petition was allowed. A Special Leave Petition filed there against by the competent authority was also dismissed. Representations were made by him for return of the said properties. An order was passed by the competent authority on or about 30.1.1996 canceling the Order dated 24.9.1979 whereby and whereunder the properties were directed to be forfeited. Allegedly, whereas the fixed deposit receipt was returned to him, the immovable properties were not. A Writ Petition was filed by the appellant. Allegations made in the said writ petition were denied and disputed. Respondent No. 4 who was impleaded as a party thereto contended that the appellant had transferred the said property in his favour. A learned Single Judge of the High Court by a Judgment and Order dated 17.1.2005 dismissed the said writ petition, holding; 6. I have gone through the petition, documents annexed with the memo of petition, affidavits and other documents which have been shown to me by the learned Counsel for the respective parties. The facts of the present petition are peculiar as during the pendency of the proceedings, certain changes have been taken place. It is the case of the other side that the property in question has been sold by the Petitioners to the third party by way of registered sale deed, before finalization of the proceedings, but the Petitioner has denied the same. It is the case of the Petitioners that the Petitioners have not sold the property in question, but some persons have forged and fabricated documents and the property has been transferred by way of registered sale deed, behind the back of the Petitioners illegally and fraudulently. It has also been established that during the course of the proceedings, the property has been vested to the Jaipur Urban Development Authority. Thus, the questions which arise for consideration of this Court in this Petition is disputed questions of facts. It is the case of the Petitioners that they are owners of the property and it is the duty of the Respondent authorities to hand over the possession of the property in question to them and on the other hand, it is prima facie established that third party interest has created by way of sale deed since long and same has not been challenged by the Petitioners on anybody else and the said registered sale deed is in operation as on today. Therefore, whether the aforesaid sale-deed is legal and the same has been executed by the Petitioners or the same is false and fabricated, cannot be decided in this proceedings initiated by the Petitioners under Article 226 of the Constitution of India. The Petitioners are required to initiate appropriate proceedings before appropriate Court. So far as the decisions, upon which the learned Counsel for the Petitioners has placed reliance, are concerned, I am in total agreement with the ratio laid down in the said decisions. But as stated earlier, in this petition disputed questions of facts have been arisen and therefore, the Petitioners cannot get benefits of the said judgment.
(3.) The learned Single Judge, therefore, did not go into the question, as to whether the appellant had transferred the said property in favour of the respondent No. 4 herein or not. An intra-court appeal preferred there against under the Letters Patent of the Bombay High Court was preferred there against by the appellant. Apparently, a question was raised therein as to whether the same in effect and substance was filed by the appellant or some other person.;