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2016 (4) TMI 782 - KERALA HIGH COURT

2016 (4) TMI 782 - KERALA HIGH COURT - TMI - Aggrieved person - Whether the 4th respondent, Assistant Director, Directorate of Enforcement can be said to be an “aggrieved person” from the order dated 3.7.2013 of the Adjudicating Authority, the Assistant Director, Directorate of Enforcement so as to file an appeal under Section 17(2) of 1999 FEMA Act - Held that:- Section 19 of the 1999 Act provides appeal to the Appellate Tribunal against an order; (i) passed by the Adjudicating Authority other .....

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the Assistant Director who is the complainant or Director of Enforcement who is empowered to enforce the provisions of the Act, there will be no remedy available against an order of the Adjudicating Authority, viz., Assistant Director and Deputy Director in the event of they passing illegal adjudication order. For eg., in the event the Assistant Director passes an order finding contravention of the provisions of Section 13 but rejects the application on technical ground whether there shall be n .....

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Director and above in the Directorate of Ministry of Finance has been empowered to file appeal under Section 35 of the 1999 Act in the High Court, we are not persuaded to accept the submission that Assistant Director was incompetent to file an appeal before the Special Director. More so, both in the memorandum of appeal as well as the counter affidavit it has been categorically stated that the appellant is authorised to file appeal. Thus submission raised by the learned counsel for the appellant .....

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o raise submissions regarding finding of contravention. Scope of the appeal filed was as to whether the Adjudicating Authority has rightly refused to confiscate the amount seized or the amount deserves to be confiscated. We do not find any violation of principles of natural justice as contended by the learned counsel for the appellant. In the result, we find no merit in the appeal. Writ Appeal is dismissed.

As no such substantial question of law is involved as to the interpretation of .....

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judgment, the writ petition has been dismissed. 2. The brief facts of the case as emerged from the pleadings of the parties are: On 1.6.2007 petitioners 1 and 2 who are travelling in a bus from Bangalore to Mangalore were arrested by Upilangadi Police Station, Mangalore and an amount of ₹Rs.39,22,679.50 was seized. The Assistant Director, Directorate of Enforcement (FEMA) initiated an investigation for contravention of provisions of the Foreign Exchange Management Act, 1999 (hereinafter re .....

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angalore for removal of three conditions. The Principal Sessions Judge by order dated 1.8.2007 allowed the revision and removed the conditions. The Sessions Court directed the police to handover the seized Indian currencies and other properties to the 4th respondent. The 4th respondent Assistant Director, after completing the investigation, filed a complaint under Section 16(3) of 1999 Act before the Deputy Director (Adjudicating Authority), Directorate of Enforcement, Bangalore. The Adjudicatin .....

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ed on petitioners 1 and 2 for violation of Section 3(c) of the 1999 Act. The Adjudicating Authority, however, decided not to confiscate Indian currency and directed for return of balance amount to the 3rd petitioner. The Assistant Director, Directorate of Enforcement filed an appeal under Section 17(2) of 1999 Act against the adjudication order dated 3.7.2013. There was a delay of 28 days in filing the appeal. In the application for condonation of delay it was stated that the delay was caused du .....

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bruary, 2015 disposed of the writ petition directing the appellate Authority i.e. the Special Director (Appeals), to dispose of the statutory appeal within a period of two months. The 3rd petitioner filed an affidavit in the appeal stating that no appeals were filed so far against the adjudication order. It was also stated in the affidavit that the Assistant Director, Directorate of Enforcement may be directed to furnish list of adjudication orders where instead of confiscation seized Indian cur .....

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petitioners and further confiscated the seized amount of ₹ 39,22,769/-. A review petition ₹ was filed by the petitioners before the Special Director (Appeals) praying for reviewing the order dated 3.6.2015. 4. W.P(C) No.23197 of 2015 was filed by the petitioners praying to quash the order dated 3.6.2015 Ext.P7 and it was further prayed that the Appellate Authority may be directed to decide Ext.P8 review petition. The writ petition was heard by learned Single Judge. The learned Singl .....

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rejected and the learned Single Judge dismissed the writ petition. Aggrieved by the order of the learned Single Judge, this writ appeal has been filed by the writ petitioners. 5. Sri.Joshi N. Thomas, learned counsel for the appellants in support of the writ appeal contends that the appeal filed before the Special Director (Appeals) i.e. the 5th respondent by the Assistant Director, Directorate of Enforcement, the 4th respondent, was not maintainable. He contends that the Assistant Director is t .....

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he Assistant Director can never be said to be aggrieved from an adjudication order and no appeal can be filed before the Special Director. Learned counsel for the appellants re-iterated his submission of violation of principles of natural justice. 6. This Court while admitting the appeal directed the Assistant Solicitor General of India to file a statement. A statement dated 26.10.2015 was filed on behalf of the Central Government. A counter affidavit on behalf of respondents 1 to 5 dated 5.1.20 .....

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empowered to carry on investigation and file complaint. In the present case, Assistant Director, who adjudicated the matter, did not file the appeal. Rather the appeal was filed by another Assistant Director. The Assistant Director thus, had two different capacity i.e. as Investigating Officer, as complainant as well as the Adjudicating Authority. The complaint having been partially rejected, Assistant Director who was the complainant is the aggrieved person to file an appeal. It is contended t .....

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Rama Arangannal and another [AIR 1981 Madras 80], ADI Pherozshah Gandhi v. H. M. Seervai, Advocate General of Maharastra, Bombay [(1970) 2 SCC 484] and Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and Another ([2007] 8 SCC 254). 9. We have considered the submissions of learned counsel for the parties and perused the records. 10. From the submissions of learned counsel for the parties and pleadings on record, the following issues arise for consideration in this appeal: (i) Whe .....

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4th respodent before the Special Director against the order dated 03.07.2013 by the Adjudicating Authority, i.e., Assistant Director, was maintainable? 12. An appeal is a creature of a statute. Whether against an order passed in exercise of statutory jurisdiction appeal lies, who is competent to file an appeal, etc., are the questions, the answers of which have to be found out from the statutory scheme of a particular legislation. 13. The Apex Court in Northern Plastics Ltd. v. Hindustan Photo F .....

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te and amend the law relating to foreign exchange. Chapter IV of the Act deals with contravention and penalties . Section 13 deals with penalties. Section 13(1) provides that if any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under the Act, he shall, upon adjudication, will be liable to pay penalty. According to Section 13(2), an adjudicating authority adjudging any contravention under sub-se .....

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t as many officers of the Central Government as it may think as the Adjudicating Authorities for holding enquiry with regard to alleged contravention committed under Section 13 with regard to whom a complaint has been made under Section 16(3). Section 16(3) requires that no Adjudicating Authority shall hold an enquiry under Section 16(1) except upon a complaint in writing made by any officer authorised by a general or special order by the Central Government. Section 16(1) to (3) which are releva .....

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in this section referred to the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty: Provided that where the Adjudicating Authority is of opinion that the said person is likely to abscond or is likely to evade in any manner, the payment of penalty, if levied, it may direct the said person to furnish a bond or guarantee for such amount an subject to such conditions as it may deem fit. (2) The Central Government shall, while appointing the Adjudicating Aut .....

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ppeal against the orders of the Adjudicating Authorities. Section 17(2) provides that any person aggrieved by an order made by the Adjudicating Authority being an Assistant Director of Enforcement or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals). Section 17(1) and (2) is quoted below: 17. Appeal to Special Director (Appeals):- (1) The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the o .....

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o hear the appeals against the order of the Adjudicating Authorities and the Special Director (Appeals). Section 19 provides for appeal to Appellate Tribunal. According to Section 19 (1) any person aggrieved by an order made by the Adjudicating Authority other than those referred to in Section 17(1) or the Special Director (Appeals) may prefer an appeal to the Appellate Tribunal. Section 19(1) which is relevant is quoted as below: 19.Appeal to Appellate Tribunal: (1) Save as provided in sub-sect .....

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Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. Section 35 provides an appeal to the High Court. Section 35 provides as follows: 35.Appeal to High Court : Any person aggrieved by any decision or order o .....

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- (a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain. Chapter VI deals with Directorate of Enforcement. Section 36(1) provides as f .....

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ing made by an Officer or Special Officer or Central Government. Against the order of the Adjudicating Authorities, deciding such complaint, i.e., Assistant Director or Deputy Director of Enforcement an appeal is provided under Section 17(2) by any person aggrieved by an order.... Further against an order passed by the Adjudicating Authority other than the Assistant Director or Deputy Director of Enforcement, an appeal is provided directly to the Appellate Tribunal by virtue of Section 19(1) by .....

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s being used in different Statutes and there has been decisions of different Courts explaining and elaborating the concept of person aggrieved . We being concerned in this case with the expression person aggrieved in the context of right of appeal, we shall refer to certain definitions and judgments of different courts. 16. One of the earliest definitions of the phrase person aggrieved which has been repeatedly quoted by different High Courts and the Apex Court is the definition given by James L .....

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rongfully deprived him of something. Bramwell LJ in the above judgment expressed himself in the following manner: ...the general rule is that an appeal must be by the party who has endeavoured to maintain the contrary of that which has taken place. It is not so much that there is a disability on the part of the bankrupt to appeal, as that no one but the Comptroller is entitled to appeal. The passages extracted above from the judgment of James LJ was considered by the Court of Appeal in Ex p Offi .....

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'EX PARTE OFFICIAL RECEIVER, REED IN RE', (1887) 19 Q B D 174. It was there determined that any person who makes an application to a Court for a decision, or any person who is brought before a Court to submit to a decision, is , if the decision goes against him thereby a 'person aggrieved' by that decision". Lord Justice Kay in the same judgment made the following observations: The preliminary objection to the appeal is two-fold: (1) It is said that the Board of Trade are n .....

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n. I cannot understand. I am clearly of opinion that the Board were 'persons aggrieved' by this decision. Then (2) it is said that the decision is not an 'order'. When the High Court makes a declaration of right, and further orders the costs of the application to be paid (which is the common form here used), and that is drawn up and sealed with the seal of the Court, and, I suppose placed on record, as all orders of the High Court are, it seems to me that it is clearly an order o .....

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rmation to the Additional Custodian of Evacuee Property who supported the proceedings against Aboobakar under the Bombay Evacuees Property Act, 1949. The Additional Custodian after adjudication held that the said Aboobakar was not an evacuee. However, he issued a notice on the same day asking him to show why he should not be declared an intending evacuee. Tek Chand Dolwani filed an appeal being an informant and interested in the adjudication before the Custodian General of India praying for a de .....

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ction 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed : (a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian; (b) to the Custodian-General,, where the original order has been passed by the Custodian, an Additional Custodian or an Authorized Deputy Custodian." After elaborately discussing the question as to whether Tek Chand Dolwani is a person aggrieved, the following was stated by the Apex Court in .....

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evacuee amounted to an order under section 7 and Tekchand therefore was a person aggrieved by that order..... The Apex Court in the above case held that Tek Chand Dolwani was a person aggrieved. 18. A Division Bench of the Patna High Court in Md.Sharfuddin v. R.P.Singh (AIR 1957 Patna 235) had occasion to consider the phrase person aggrieved in the context of Administration of Evacuee Property Act, 1950. A proceeding was initiated under the aforesaid Act against one Sharafudin by the Assistant C .....

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graphs 14 and 15, the following was stated: 14. Section 24(1) (a) of the Act is in the following terms: "24(1) Any person aggrieved by an order made under S.7, S.16 or S.40 may prefer an appeal in such manner and within such time as may be prescribed : (a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian. 15. The argument put forward by Mr.Ayub n support of his above contention is that Mr.P.Sinha, Assistant Custodian, Headquarters, Patna, opposit .....

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0 of the East Punjab Evacuees Property (Administration) Ordinance, which is equivalent to S.24 of the Act, it was held that no one has a right to appeal under S.30 of the Ordinance unless he can show that a decison has been pronounced against him, which has wrongfully deprived him of something, or wrongfully affected his title to something. In other words, the words aggrieved person in S.30 of the Ordinance do not really mean a man who is disappointed of a benefit which he might have received if .....

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was legally entitled, and, as such, he had no locus standi to go up in appeal. 19. One of the judgments on which reliance has been placed by the learned counsel for the appellant is the judgment of the Apex Court in Adi Pherozshah Gandhi v. H.M. Seervai (1970 [2] SCC 484). In the above case, notice was issued to the petitioner - Advocate for provisional misconduct by State Bar Council under Section 35. The State Bar Council acquitted the Advocate. An appeal was filed by the Advocate General, Mah .....

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ust cause him a legal grievance by wrongfully depriving him of something. It is no doubt a legal grievance and not a grievance about material matters but his legal grievance must be a tendency to injure him. That the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance. These principles are gathered from the cases cited and do not, as I shall show later, do violence to the context in which the phrase occurs in the Advoca .....

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;But as has been said again and again there is often little utility in seeking to interpret particular expressions in one statute by reference to decisions given upon similar expressions in different statutes which have been enacted alio intuitu. The problem with which we are concerned is not, what is the meaning of the expression, aggrieved' in any one of a dozen other statutes, but what is its meaning in this part of this statute?' Accordingly, I only look at the cases to which we have .....

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ex Court held that the Advocate General is not a prosecutor on behalf of the Bar Council. The Apex Court after considering the role and function of the Advocate General in the case of disciplinary proceedings against the Advocate held that he cannot be a person treated to be aggrieved whether the decision is in favour or against him. In paragraphs 31 and 32 the following was stated: 31. In view of the common roll maintained by the Bar Council of India it appears to me that if anybody represents .....

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cutor on behalf of the Bar Council because if he was one, his presence would be more necessary at the stage at which the disciplinary committee considers in limine to decide whether the matter should be proceeded with at all. The next question is : why is he summoned at all? In my opinion, the Advocate General is not noticed and brought before the court because he is a prosecutor or is to be bound by the order of the disciplinary committee. He represents no interest there and is heard merely bec .....

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vocate and who will thus have unbiased and impartial approach to the case. The Advocate General is generally a lawyer of some standing having made a mark in the profession and his contribution to the deliberations of the disciplinary committee is welcome because thus the disciplinary committee is helped to reach a proper conclusion. 32. If he is not a person summoned to be bound by the order but a person who is heard in a dispute between others merely to be of assistance in reaching the right co .....

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orney General is not a party as in a lis and after the decision, his duty ends. Lord Denning points this out clearly by saying that the Advocate General in that case could not have been aggrieved by the order of the Deputy Judge if he had acquitted the delinquent advocate in that case. The Attorney General's interest was found by Lord Denning in relation to the Crown and the Colony and that too for the special reason that appeal court had denied that the Deputy Judge possessed jurisdiction t .....

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resent the Government in these proceedings. If the Government was interested the notice would have gone to it. In other statutes, where the Central Government is vitally interested, as for example, in the Chartered Accountants' Act, the notice does not go to the Advocate General but to Government and the Government appears through the Advocate General. The Advocate General under the Act finishes his duty when the hearing is over and he cannot be considered to be a party interested or a ' .....

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quite different. The larger proposition contended for by Mr. Desai is therefore not acceptable to me. 20. The above case was on its own facts and the Apex Court held that the Advocate General is not a person aggrieved since none of his rights were being affected by the decision taken by the Bar Council regarding disciplinary proceedings against an Advocate. He was neither held to be a Prosecutor against the Advocate nor represented body, State Bar Council. The above case related to a Statute di .....

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rd to transfer of a double storied building on 16.08.1973, proceedings were initiated by the competent authority alleging that valuation shown in the sale deed does not refer to the fair market value. The competent authority after enquiry decided to pass an order for acquisition of the property under Section 20A of the Act. The transferee filed an appeal before the Income-Tax Appellate Tribunal which appeal was allowed. Against the order of the Appellate Tribunal, appeal was filed by the Inspect .....

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ry was started by the custodian under the Evacuee Property Act was held to be an aggrieved person for the purpose of filing an appeal. When a person is given a right to raise a contest in a certain matter and his contention is negatived, then, he is certainly a person aggrieved by the order disallowing his contention. In the instant case, the IAC, the Competent Authority, had not only initiated the proceeding but he was made the sole respondent before the Appellate Tribunal to submit to a decisi .....

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h Act, 1936 in Cook v. Southend Borough Council (1990 [1] All E.R. 243). Appellant's hackney carriage vehicle and driver's licence was revoked by the Borough Council. The appellant appealed to the Magistrate Court which made an order for cost against the Council. The Council appealed to the Crown Court claiming to be a person aggrieved. Council s appeal was allowed by the Crown court against which the appellant approached the High Court. The High Court held that since the Magistrate has .....

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Planning Act 1971). In the case of such a statutory provision, it would be nonsense to regard the public authority as not being a person aggrieved since it wouold in any event be entitled to obtain the same relief by applying for judicial review. In the case of the present appeal provision the position is not the same. While the council wouldl be entitled to apply for judicial review if it has no right to appeal, the court's powers on the appeal are much more extensive than they would be on .....

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d by the Registrar of Companies against the respondent alleging that the respondent had in violation the provisions of Section 113 of the Companies Act defaulted in transfer of shares within the time specified in that Section. The Chief Judicial Magistrate dismissed the complaint on the ground that it was barred by limitation under Section 469 of the Code of Criminal Procedure. A revision was filed in the High Court which upheld the order of the Magistrate but Court also held the appellant incom .....

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olation of S.113 of the Act, defaulted in transfer of shares within the time specified in that section. The Chief Judicial Magistrate, Coimbatore by his order dated 30-3-1993 dismissed the complaint on the ground that it was barred by limitation under S.468 of the Code of Criminal Procedure (for short "the Code"). 4. The appellant filed a petition under S.397 and 401 CrPC before the High Court of Madras praying for revision of the order dated 30-3-1993. The High Court by the impugned j .....

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imitation, in relation to an offender, shall commence,- (a) on the date of the offence; or b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier;" In Paragraph 17, the Apex Court held that Registrar of Companies was an aggrieved person. It is relevant to quote paragraph 17: 17. The phrase "person aggriev .....

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take cognizance of an offence against the Companies Act except on the complaint of a shareholder, the Registrar or the person duly authorised by the Central Government. Where the transferee or allottee is not an existing shareholder of the company, if the words "person aggrieved" are read in such a limited manner, it would mean that S.469(1)(b) of the Code would be entirely inapplicable to offences under S.113 of the Act. There is, in any event, no justification to interpret the words .....

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we come to the judgments which have been heavily relied on by the learned counsel for the petitioner, i.e. Director of Enforcement, Madras v. Rama Arangannal (AIR 1981 Madras 80) and Mohtesham Mohd.Ismail v. Spl.Director, Enforcement Directorate and Another (2007 [8] SCC 254). In the Madras case provisions of Sections 52 and 54 of the Foreign Exchange Regulation Act, 1973 came up for consideration. An order of adjudication was passed by the Director of Enforcement which was set aside by the Appe .....

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f Enforcement. Preliminary objection raised by the respondent is noted in paragraph 2 which is quoted below: The appellant, the Director of Enforcement, has filed the appeal claiming himself to be aggrieved against the said order of the Foreign Exchange Regulation Board. A preliminary objection has been taken by the respondents herein as to the maintainability of the appeal by the Director of Enforcement. The preliminary objection raised by the learned counsel for the respondent is twofold; (1) .....

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udication cannot be, in any event, taken to be aggrieved against the decision of the Foreign Exchange Regulation Appellate Board reversing his decision, and that therefore, this appeal filed by the Director or Enforcement cannot, in any event be maintained. An application was filed by the Director of Enforcement seeking amendment of the cause title to substitute the name of the appellant as Central Government of India, represented by the Special Director, Enforcement. The said application was re .....

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questions of law from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52: Provided that the High Court shall not entertain any appeal under this section if it is filed after the expiry of sixty days of the date of communication of the decision or order of the Appellate Board, unless the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. Explanation.-In this section and in section 55, High C .....

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n file appeal under Section 54, the appeal by the Director of Enforcement is not maintainable. It was also observed that the Director of Enforcement cannot be treated as an aggrieved party since while passing the order he has acted only as a Quasi Judicial Tribunal and such Quasi Judicial Tribunal cannot have a grievance when the order is set aside by the higher authority. The following was stated in paragraph 4: 4. On the question as to the maintainability of the appeal, it is seen that the Exp .....

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he initial authority who passed the adjudication order against the respondents and whose order has been set aside by the Appellate Board on an appeal filed by them. Therefore, the Director of Enforcement cannot be said to be aggrieved by the order of the Appellate Board merely because its order of adjudication has been set aside by the Appellate Authority. If that were to be possible, every subordinate Tribunal can file an appeal against the order of the Appellate Tribunal reversing its decision .....

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gainst the principle of natural justice if we assume that the Director of Enforcement who is a quasi judicial tribunal adjudicating a matter between the Government and the person sought to be proceeded against for violation of the provisions of the Act, had an interest, personal or otherwise, in the matter which was the subject matter of the dispute which he adjudicated. It would have been a different matter if the statute authorised the Director of Enforcement to file an appeal. But admittedly .....

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s quasi judicial Tribunal, is enabled to file an appeal against the order of the Appellate Assistant Commissioner setting aside his orders, on the directions or at the instance of the Commissioner of Income-tax. Under Section 37 of the Tamil Nadu Central Sales-tax Act, power is given to the Deputy Commissioner of Commercial Taxes to file a revision to the High Court against the order of the Sales-tax Appellate Tribunal. We can cite many such instances where the statute specifically enables the i .....

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nt, who is the appellant in this case cannot be said to be an aggrieved person. 25. In so far as the first observation of the Madras High Court that under Section 54 it is only the Central Government which has been given right of appeal, we are unable to persuade ourselves with the above submission. Section 54 states that an appeal shall lie to the High Court only on questions of law from any decision or order of the Appellate Board under subsection (3) or sub-section (4) of Section 52. In the E .....

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ch the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain. Explanation (ii) was thus only for purposes of explaining and indicating High Court where the appeal is to be filed. The opening words begin with the expression where the Central Government is the aggrieved party . The above Explanation cannot be read that Section 54 lay down that it is only the Central Government which is an ag .....

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sing the order he has acted only as a Quasi Judicial Tribunal and such Quasi Judicial Tribunal cannot have a grievance when the order is set aside by the higher authority. 26. In the present case, pleadings are on the record to the effect that appeal has not been filed by the Assistant Director who was the Adjudicating Authority. It has been clearly stated in paragraph 4 of the counter affidvit that another Assistant Director and not the Adjudicating Authority had preferred the appeal. Paragraph .....

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order of another Assistant Director (Adjudicating Authority) and Section 17(2) of FEMA states that any person aggrieved by an Order made by the Adjudicating Authority, being an Assistant Director of Enforcement or Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals) . Hence, the appeal preferred by the Assistant Director of Enforcement before the Special Director (Appeals), is maintainable and the principles of natural justice have been followed at each and eve .....

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ere the Adjudicating Authority has filed appeal. As noted above, the Central Government by Notification under Section 16(1) is authorised to appoint Adjudicating Authority to hold enquiry and further under Section 16(3) enquiry shall be held only on a complaint in writing made by an Officer authorized by the order of the Central Government or State Government. The Assistant Director thus is authorised to carry on investigation of violation under Section 13 and file a complaint. An Assistant Dire .....

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orate and Another (2007 [8] SCC 254). In the above case question was whether the Special Directors appointed under the Foreign Exchange Regulation Act, 1973 can prefer the appeal before the High Court against the order passed by the Foreign Exchange Regulation Appellate Board. Against the appellant proceedings were initiated for contravention of Section 73 of the Regulation Act. The Special Director adjudicated the matter and by order dated 06.10.2013 imposed penalty of ₹ 2,50,000/-. Appel .....

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and referring to the aforesaid Notification the Apex Court held that no Notification was filed to show that the Authority concerned was empowered to prefer appeal on behalf of the Central Government. It was further held that the Central Government was not a party to the appeal. Further, appeal was filed in official capacity as Adjudicating Authority and not as delegate of the Central Government. The Apex Court further held that a Quasi Judicial Authority cannot prefer an appeal being aggrieved a .....

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icer of Enforcement with the designation of Special Director of Enforcement, for the purpose of enforcing the provisions of the said Act; and in exercise of the powers conferred by S.51 of the said Act hereby empowers him to adjudicate cases of contravention of any of the provisions thereof, other than S.13, clause (a) of sub-section (1) of S.18 and clause (a) of sub-section (1) of S.19 or of any rule, direction or order made thereunder." 15. From the notification dated 22.09.1989, whereupo .....

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missible. Before the High Court, no notification was filed to show that the authority concerned was empowered to prefer an appeal on behalf of the Central Government. The Central Government was not even impleaded as a party to the appeal. First Respondent did not file the appeal on behalf of or representing the Central Government. It was filed in its official capacity as the adjudicating authority and not as a delegatee of the Central Government. 16. An adjudicating authority exercises a quasi j .....

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erwise. Only because an officer has been appointed for the purpose of acting in terms of the provisions of the Act, the same would not by itself entitle to an officer to discharge all or any of the functions of the Central Government. Even ordinarily a quasi judicial authority can not prefer an appeal being aggrieved by and dissatisfied with the judgment of the appellate authority whereby and whereunder its judgment has been set aside. An adjudicating authority, although an officer of the Centra .....

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e the appeal. Further in the facts of the above case the Officer was appointed by Notification dated 22.09.1989 for the purpose of empowering him to adjudicate the cases of contravention of the provisions of the Act. Thus Central Government never authorized the Officer to file appeal on its behalf. It was further held that the Adjudicating Authority which exercised the Quasi Judicial power cannot challenge an order by which order of the Adjudicating Authority has been set aside. There cannot be .....

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icating Authority. Further, present is not a case where appeal was being filed on behalf of the Central Government. No such submission was raised either before the Appellate Authority or before us. Thus judgment of the Apex Court which was considering the case of filing of appeal in the High Court, i.e., Section 54 of the Regulation Act akin to Section 35 of the 1999 Act whereas in the present case we are concerned with Section 17(2) of the 1999 Act. The above judgment of the Apex Court is thus .....

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t. Assistant Director is also Adjudicating Authority appointed by Notification issued by the Central Government under Section 16(1) of the 1999 Act. However, in the present case the Assistant Director who filed the appeal was different from the Assistant Director who adjudicated the dispute. Hence the appeal filed by the Assistant Director cannot be held to be an appeal by the Adjudicating Authority itself. (b) The Assistant Director had filed the complaint, Ext.P1, on the basis of which adjudic .....

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n 17, appeal is provided to Special Director only against the Adjudicating Authority (Assistant Director or Deputy Director of Enforcement). Thus appeal under Section 19 shall lie to the Appellate Tribunal when adjudication is made by an authority other than the Assistant Director and Deputy Director. In event it is held that a person aggrieved within the meaning of Sec.17(2) cannot include the Assistant Director who is the complainant or Director of Enforcement who is empowered to enforce the p .....

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nd purpose which may advance the object of the Act. Denying right of appeal against any order passed by the adjudicating authority shall be defeating the purpose and object of the Act. Hence we are inclined to take the view that the Assistant Director, who is also a complainant can file appeal before the Special Director under Section 17(2). (d) In the counter affidavit respondents have brought an order dated 6.3.2009 issued by the Government of India, Ministry of Finance (Annexure R1([b]) which .....

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the rank of Assistant Director and above in the Directorate of Ministry of Finance has been empowered to file appeal under Section 35 of the 1999 Act in the High Court, we are not persuaded to accept the submission that Assistant Director was incompetent to file an appeal before the Special Director. More so, both in the memorandum of appeal as well as the counter affidavit it has been categorically stated that the appellant is authorised to file appeal. 30. In view of the foregoing discussion, .....

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of the order the following has been stated: 8. After condoning the delay on the part of the appellant, in filing the appeal, petition, notices were issued to all concerned to make submissions or defence statements against the appeal petition and opportunities of being heard personally were also provided to all concerned. According to Shri G.Suresh Babu, Assistant Legal Advisor to the appellant appeared before me on various dates, filed details and made oral submissions. 32. Learned counsel for t .....

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