TMI Blog2011 (2) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... Kamal Bulchandani i/b Kamal and Co. for the Petitioner R.V. Desai with Rajinder Kumar, R.B. Pardeshi and H.V. Mehta for the Respondent JUDGMENT D.K. Deshmukh, J 1. Petitioners are manufacturers of colour TVs, Videos and other electronic items. Petitioners import interalia Colour Picture Tubes (CPT) and Video Tape Deck Mechanism (VTDM) for manufacturing electronic items. CPTs and VTDMs were listed in Appendix 6, List 8, Part-I at Sr.Nos. 821(5) and 821(79) respectively. By transfer, as permissible, Petitioners purchased Additional Licenses all dated prior to 21-3-1989 and endorsed under Para 215 of AM-88-91 Policy permitting imports of items listed under Appendix 6, List 8, Part-I as on the date of issue of the licenses. 2. On 21-3-1989 Public Notice No. 109 deleted the items CPT and VTDM from Appendix 6, List 8, Part-I. On 28-5-1990, as the Petitioners were importing CPTs and VTDMs against the said licenses and since the same were allowed clearance by the Customs, the Respondent No. 4- Joint Chief Controller of Imports and Exports issued abeyance order with the show cause notice to the Petitioners asking the Petitioners to show cause why the Petitioners should not be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exports. The question that arises for consideration in this petition is, can a Chief Controller of Imports and Exports file an appeal under Section 4M of the Act before the Central Government challenging the order passed by the Additional Chief Controller of Imports and Exports. 7. The learned Counsel appearing for the Petitioners relying on the provisions of the Act as also the provisions of some other Enactments submits that only a party which is aggrieved by the order passed by the Additional Chief Controller of Imports and Exports or Chief Controller of Imports and Exports can file an appeal under Section 4M(1)(a) of the Act. The learned Counsel submits that whenever the Legislature wanted to make a provision for the departmental authorities to file departmental appeal against the order made by the authorities working in the same department, a special provision to that effect has been made. In support of that submission the learned counsel took us through the provisions of the Customs Act, Foreign Exchange Management Act, Income-tax Act. The learned Counsel also submitted that when the Additional Chief Controller of Imports and Exports decides the appeal under Section 4M of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol) Order, I hereby debar M/s.Videocon International Ltd. and their Directors from receiving import licences, Customs Clearance Permits, obtaining allotment of imported goods from canalising agencies and importing goods from 1st October, 1990 till 31st March, 1995. This order, however, will not apply to Advance licences. As per the interim order made by the Single Judge of the Bombay High Court, this debarment order will take effect 4 weeks from the date of communication of the order to the party. 44. If M/s.Videocon International Ltd. wish to appeal against the order, they may do so before the Additional Chief Controller of Imports and Exports (Enforcement-cum-Adjudication) in this office in terms of clause 10(2) of the Imports (Control) Order, 1955, as amended within 45 days from the date of communication of this order. 10. It is clear that that order was made by the Joint Chief Controller of Imports and Exports in exercise of powers vested in him under Clause 8 of the Import (Control) Order, and appeal against that order was competent under Clause 10(2) of the Import (Control) Order before the Additional Chief Controller of Imports and Exports. Clause 10(2) of the Import (Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authorities for deciding specific types of cases. (3) Notwithstanding the provisions contained in the sub-para (1) above, the appellant shall be allowed not more than two stages of appeal. (4) The appeal made under the provisions of the Act and the order (s) made thereunder should be accompanied by a proforma giving the following information:- (a) Authority against whose decision appeal is preferred; (b)A copy of the order appealed against; (c) Whether the appeal is against debarment or suspension from receiving licences (in the case of debarment, the periods for which appellant has been debarred from obtaining licences may also be indicated); and (d) The grounds of appeal (in brief). (5)A copy of the appeal should invariably be sent by the appellant to the authority against whose decision the appeal is made. (emphasis supplied) 12. Perusal of the above quoted paragraph 139 shows that in exercise of its power under sub-cause (2) of Order 10 the Government issued notification dated 27-3-1985 providing therein that if the order of debarment has been made by the Joint Chief Controller of Imports and Exports, first appeal will lie to the Chief Controller of Imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exports and Additional Chief Controller of Imports and Exports. But perusal of Section 4M(1)(b), quoted above, shows that the power to hear an appeal against an order made by the sub-ordinate officer is conferred only on the Chief Controller of Imports and Exports and it is only when the Chief Controller of Imports and Exports so decides or directs an appeal can be heard by the Additional Chief Controller of Imports and Exports. Thus, power to hear appeal is to be delegated by the Chief Controller of Imports and Exports to the Additional Chief Controller of Imports and Exports. Perusal of Clause 139 and Notification dated 27-3-1985 shows that the Chief Controller of Imports and Exports has also been given power to designate appellate authority for deciding the appeals. The provisions of Notification dated 27-3-1985 is in consonance with the provisions of Section 4M. It is, thus, clear to our mind that when the Additional Chief Controller of Imports and Exports decides the appeal, he acts as a delegate of the Chief Controller of Imports and Exports. 16. The Petitioners had filed the appeal against the order of the Joint Chief Controller. That Appeal was decided by the Additional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of "Custodian" in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian- General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property, the Act provides that the Custodian or the Custodian-General, as the case may be, before 1956, and the Custodian-General thereafter, may set right the wrong. In the premises the words "any person aggrieved in S.24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words any person aggrieved in the context of the Act can not include any Custodian as defined in the Act. 17. Following observations found in paragraph 7 of that judgment, in our opinion, are relevant. They read as under: 7............Where a statute or rules framed thereunder pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . in Huth v. Clarke (25 Q.B.D. 391, "In my opinion the word, in its general sense and as generally used, does not imply, or point to, a giving up of authority, but rather the conferring of authority upon someone else". As observed by Lord Coleridge, C.J. in 25 Q.B.D. 304, the word 'delegation' implies that powers are committed to another person or body which are as a rule, always subject to resumption by the power delegating. The person delegating does not denude himself. (Per Wharton's Law Lexicon, 1976 Reprint Ed. at page 316). Delegation implies also the power to withdraw delegation. As indicated in Wharton's Law Lexicon, delegation is a sending away; a putting into commission; the assignment of a debt to another; the entrusting another with a general power to act for the good of those who depute him. The word 'delegate' means little more than an agent. An agent exercises no power of his own but only the powers of his principal. The observation in Huth's case (supra) was referred to in Roop Chand's case (supra). In general, a delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Cuttack and Ors. (1998 (7) SCC 162) and in OCL India Ltd. v. State of Orissa and Ors. (2003 (2) SCC 101), if an authority delegates the power to act it shall be deemed to be an act of the delegator. In such a situation there is no scope for revision of the order of the delegate by the delagator. In Commissioner of Land Records and Settlement's case (supra) it was noted that the delegator (also described as the principal) cannot review an order of the delegate. It was, inter alia, observed by this Court as follows: "It may be argued that if the order of the delegate is tantamount to the order of the principal, then the principal can review such an order of the delegate. This appears to be plausible at first blush but is, in our opinion, not correct because of the intervention of another fundamental principle relating to "review" of orders. The important principle that has to be kept in mind here is that a review application is to be made only to the same Judge or if he is not physically available, to his successor. The decision of the Privy Council in Maharajah Moheshur Sing v. Bengal Govt. 3 WR 45 (PC)) to which reference was made by learned Senior Counsel, Shri T. L. Vishw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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