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TMI Blog1994 (4) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the character of possession of the currencies and whether the same was acquired in a lawful manner or not. While W.P. No. 1279 of 1994 relates to the power to retain the currency under Section 41 of the FERA Act beyond a particular period, W.P. No. 1280 of 1994 relates to the validity of the show cause notice issued on 4-8-1993. For the purpose of understanding the scope of the argument in W.P. No. 1279 of 1994, the following dates are materials. (1) The date of seizure of the Currency 18-8-1992 (2) The date of Amendment to Section 41 of the FERA Act. 8-1-1993 (3) The date of the show-cause notice 4-8-1993 (4) The date of service of the show cause notice 24-8-1993 2. The argument is that after 8-1-1993 Section 41 of the FERA Act empowers the authorities to retain the currency only for a peried of six months, unless of course proceedings had been initiated as per sub-clauses (i) and (ii) of Section 41 of the FERA Act. Prior to the amendment the authorities had power to retain the documents for a period of one year. If a period of one year is available, the power to retain the documents can be unheld because within the period of one year from 18-8-1992, a show-cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent is perfectly legal and in accordance with Sections 3 and 4 of the FERA Act. Consequently, it is contended that the show-cause notice is valid and not liable to be quashed. 5. I will first deal with the power to retain the document namely, the currency notes in accordance with Section 41 of the FERA Act and whether the respondent has lost the power and is bound to return the currency notes. A decision on this aspect will depend on the question whether the amended provisions of Section 41 of the FERA Act which came into force on 8-1-1993 are prospective or retrospective. The argument of the petitioner that even after the amended provisions came into offect on 8-1-1993, the respondents had about 23 days in January, and 16 days in February, 1993 to initiate proceedings like the issue of a show-cause notice and continue to retain the documents. On the other hand, the respondents failed to avail of this period and save themselves from the bar of limitation prescribed by the amended Act. Therefore, it is contended that by no stretch of imagination can the respondent seek to claim the period of one year granted under the unamended Section 41 of the FERA Act. It is pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liminary decree was passed on 30-11-1906. A final decree was passed on 7-1-1907. After the sale of the mortgaged property there was still a balance to be paid to the mortgagee. The minor legal representative of the mortgagee attained majority on 23-9-1924 and applied under Order 34, Rule 6 C.P.C. for a personal decree against the mortgagor. The mortgagor pleaded that the application was barred by limitation. The trial court had overruled the plea of limitation and granted a personal decree against the mortgagor. The appeal against the said order which was decided by the Division Bench of the Calcutta High Court. The issue arose before the Division Bench in the following manner :- Under the Limitation Act 15 of 1877, the mortgagee had a right to apply for a personal decree after attainment of majority and thereafter within the period of limitation. Under the new Limitation Act 9 of 1908 which was passed in August 1908, but came into operation on 1-1-1908, the minor must make the application within the period of limitation prescribed under Article 181 of the Schedule to the Limitation Act. In other words the period of limitation was three years from the time when the right to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a distinguished case of Promotha Nath v. Sourav Dasi [(1920) 31 C.L.J. 463] in the following words :- "The learned Judges held that S. 66 of the Code had no retrospective operation as it actually took away a right of suit which is a vested right." Finally, the Calcutta High Court concluded with the approval the following passage in Maxwell's `Interpretation of Statutes' 6th Edition, at page 399. "In both of the above cases, however the construction, though fatal to the enforcement of a vested right, by shortening the time for enforcing it, did not in terms take away any such right; and in both it seems to fall within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts, even where the alteration which the statute makes has been disadvantageous to one of the parties. Although to make a law for punishing that which, at the time when it was done, was not punishable, is contrary to sound principle; a law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions; and no secondary meaning is to be sought f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated by which actions should be initiated in respect of applications which get barred by the ammended provisions. One can easily advert to several such enactments like the Limitation Act, 1963 and the Land Acquisition Act 64 of 1984. These enactments say that as and from the date of the amended act actions should be initiated within a particular period failing which the action, if any, will get time barred under the provisions of the amended Limitation Act. In this connection reference may be made to two other judgments of the Supreme Court in Ramprasad v. Vijay Kumar (1967 S.C. 278-69 BLR. 20). The apex court had to consider the applicability of the Article 138 of the Limitation Act, 1908 which abridged the period of limitation for enforcement of a mortgage. The Supreme Court held that the abridgment did not take away any vested right. The following passage is in with the line of approach indicated by me earlier :- "But this abridgment did not impair or take away any vested right. Section 30 of the Indian Limitation Act, 1908 inserted by the Part B States (Law) Act, 1951 made suitable provision safeguarding vested rights in cases where the period prescribed was shorter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months." 9. It is thus clear that where in stated cases the department is faced with the situation that the period of six months expires on the date of coming into force of the amended provisions namely on 8-1-1993, it is always open to the Director of Enforcement to come to the aid of the authority and extend the period upto a maximum limit of six months, after recording the reasons therefor. In my opinion, this safety valve in the amended Section 41 of the FERA Act provides the key to solve the disputed question between the parties. Even assuming on the particular facts of the case where even after the amendment to Section 41 of the FERA Act, the Department had a short period from 8-1-1993 to 17-2-1993 to initiate action and continue to have possession of the seized documents, and that it was not sufficient, it was open to the authorities to have sought for extentions of time by applying to the Director of Enforcement under the proviso above quoted. 10. The agrument of the respondents is, that no questions of limitation is involved to Section 41 of the FERA Act and the right to retain the documents is a substantial right and therefore, the same cannot be taken away by the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass of Officers of Enforcement. Sub-clause (3) of Section 3 says that such other class of officers of Enforcement may be appointed for the purpose of the Act. Section 4(1) of the Act empowers the Central Government to appoint any person as it thinks fit to be an officer of an Enforcement. Sub-section (2) of Section 4 need not detain us because that relates to the delegation of powers to certain class of officers to appoint an officer of enforcement below the rank of Assistant Director of Enforcement. We are not concerned with such a case in this writ petition. The arguments of the petitioner is that under GSR 61, dated 1-1-1974 the Central Government had already authorised the Director of Enforcement to appoint officers of the Enforcement below the rank of an Assistant Director of Enforcement. On the creation of a class designated as Enforcement Officers the power under clause (e) of Section 3 read with Section 4(1) gets exhausted, according to the petitioner. It is the further case of the petitioner that the Government is not empowered by Section 3(e) to create a new class or a new post. The class of Enforcement Officers already created under Section 3(e) rank below the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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