TMI Blog1986 (8) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... dia and as such, he cannot hold or acquire any immovable property in India unless he had obtained or is deemed to have obtained permission from the Reserve Bank of India to hold or acquire such property. Therefore, according to the respondents, the plaintiff/petitioner could not legally hold any property in India unless he had been permitted by the Reserve Bank under the provisions of section 31 of the Foreign Exchange Regulation Act, 1973 (for short "the Act"). It is further the case of the respondents that the petitioner was not in actual possession of the suit property at least since the time of the liberation of Goa. Along with the plaint, the petitioner filed an application seeking a temporary injunction restraining the respondents from carrying on any further construction work in the said property or from interfering in any manner with it during the pendency of the suit. The injunction sought for was granted ex parte by the order dated October 5, 1984, but the same injunction was vacated by the learned Civil Judge, junior Division, Margao, by his order dated December 21, 1984, on the grounds that admittedly the petitioner is a foreign national and he has not complied with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore; the provision of sub-section (1) of section 31 is not attracted to his case. Sub-section (4), however, provides that every person and company referred to in sub-section (1) holding at the commencement of the Act any immovable property situate in India shall, before the expiry of a period of ninety days from such commencement or such further period as the Reserve Bank may allow, make a delaration in such form as may be specified by the Reserve Bank regarding the immovable property or properties held by such person or company. This provision of law applies to the case of the petitioner and the non-compliance with it has only the consequence of a penalty being imposed on the defaulter under section 50 of the Act. Nowhere in the Act it is postulated that the non-compliance with the aforesaid provision of law will have the effect of depriving a foreigner from enjoying a property he was holding at the time of the commencement of the Act. Thus, according to the learned counsel, the courts below were entirely in error when they recorded a finding that the petitioner could not be said to hold a property, namely, the suit property in India, for he admittedly is a foreign national and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and also of being invested with a legal title, as observed by the Supreme Court in Handique v. Agri. I.T. Board, Assam [1966] 60 ITR 216 (SC); AIR 1966 SC 1191. It is a common fact that the petitioner is a foreign national and it is not denied that he has not made any declaration as required by sub-section (4), Therefore, he cannot be deemed to be holding any property in India at the present, particularly the suit property. This being the case, the courts below had correctly approached the problem and also correctly recorded a finding in that respect. In so far as possession is concerned,-learned counsel contended that though the petitioner has approached the court with the case that he is a co-owner in possession of the suit property, the fact is that, in the course of the proceedings, he admitted that he is not in actual possession of the said property and that it is the Sociedade dos Gauncares de Cuncolim and Veroda that is in possession thereof. The suit is for a mandatory and perpetual injunction and not for restoration of possession and this being so, the relief of temporary injunction was not available to him irrespective of the provision of section 38 of the Specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India shall, before the expiry of a period of ninety days from such commencement or such further period as the Reserve Bank may allow in that behalf, make a declaration in such form as may be specified by the Reserve Bank regarding the immovable property or properties held by such person or company. It would appear from the above provisions of law, particularly from the provisions of sub-sections (1) and (4) that a foreigner or a company which is not incorporated under any law in force in our country or in which the non-resident interest is more than forty per cent, will be entitled to acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India unless previous permission is granted by the Reserve Bank of India or a declaration of the holding of such property at the time of commencement of the Act is made within a period of ninety days or within such further period as allowed by the same bank. Sub-section (4) of the Act does not take away any rights which had accrued to a foreigner or to a company coming under the purview of section 31 as regards any immovable property situate in India. It, however, mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied therein, make a declaration regarding the immovable property or properties held by him. Reading sub-sections (1) and (4) together and bearing in mind the word "otherwise" occurring in sub-section (1), it would appear that irrespective of the manner or the reason why an immovable property situate in India came to be held by a foreign national, the same can be held within the meaning of the Act only if he complies with the requirements of the Act. In other words, if the foreigner had already acquired and was having title and possession over a particular property at the commencement of the Act, he will be entitled to continue to hold it only if he makes the declaration as required by sub-section (4). It is true that Shri Dessai argued that the Act is a penal statute meant only to regulate foreign exchange and, therefore, the provisions of the Act are to be interpreted restrictively. Shri Usgaonkar, however, contended that the mere fact that some penalties are provided in the said Act does not make it a penal statute. In this connection, he placed reliance on the observations made by G. P. Singh in his book " Principles of Statutory Interpretation" page 568, to- the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
