AI Drafter 
TaxTMI 
TaxTMI 
2016 (4) TMI 782
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....e an application before the Additional Civil Judge (Junior Division) and Judicial First Class Magistrate Court, Puthur for a direction to the police to handover the seized property. The Additional Civil Judge passed an order allowing the application, but put certain conditions. The 4th respondent had filed Crl.Revision No.119 of 2007 in the Court of District and Sessions Judge, Mangalore 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 Adjudicating Authority issued show cause notice dated 20.12.2007 to the petitioners requiring to show cause as to why adjudication proceedings as contemplated under Section 13 of THE 1999 Act could not be held against them. Reply to the show cause notice was given by the petitioners. The Adjudicating Authority, the Assistant Di....
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....) 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 Single Judge noticed that against the order passed by the Appellate Authority, an appeal is provided under Section 18 of 1999 Act to the Appellate Tribunal. The writ petitioners had challenged the order of the Appellate Authority on the ground of want of jurisdiction and denial of natural justice, hence, the learned Single Judge proceeded to consider the submission. The learned Single Judge held that appeal filed by Assistant Director was maintainable. The argument of violation of natural justice was 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 res....
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....sions on merits. 8. Learned counsel for the appellants in support of his submission has placed reliance on the judgment of the Madras High Court in Director of Enforcement, Madras v. 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) 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 Act. (ii) Whether the appeal was decided in violation of the principles of natural justice? 11. The issue to be considered in this Writ Appeal is whether the appeal filed by the Assistant Director, Directorate o....
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....t in writing made by any officer authorised by a general or special order by the Central Government. Section 16(1) to (3) which are relevant are quoted below: "16. Appointment of Adjudicating Authority.-(1) For the purpose of adjudication under section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section (3) (hereinafter 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 Authorities under sub-section (1), al....
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....all while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the 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 of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation.-In this section "High Court" means - (a) the High Court within the jurisdiction....
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....een repeatedly quoted by different High Courts and the Apex Court is the definition given by James LJ in Ex p Sidebotham, re sidebotham (1880) 14 Ch D 458 = (1874-80) All England Report Rep 588. James L.J. Stated the following: "...It is said that any person aggrieved by any order of the Court is entitled to appeal. But the words "person aggrieved" do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully 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 Official Receiver, re Reed Bowen & Co. (1887) 19 QBD 174) by Lord Esher ....
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....f September, 1947. One Tek Chand Dolwani supplied information 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 declaration that Aboobakar was an evacuee. In the appeal, a submission was raised that Tek Chandr Dolwani was not a "person aggrieved" by the order passed by the Custodian and hence he has no locus standi to file the appeal under Section 24 of the 1949 Act. 17. Section 24 has been quoted in paragraph 14 of the judgment as follows: "The tribunal constituted to hear appeals under section 24 has been constituted in these terms : "Any person aggrieved by an order made under section 7, section 16, section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed : (a) to the Cust....
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.... Custodian, Headquarters, Patna, opposite party No.2, was not a private party, but a departmental head, and, as such, he had no locus standi to come up in appeal under S.w24(1)(a) of the Act. In that, he cannot be considered to be a "person aggrieved" within the meaning of sub-s.(1) of S.24 of the Act. In support of his contention, he has relied on a Single Judge decision of the East Punjab High Court in Messsers.Thakar Das Pyare Lal v. Custodian, Evacuees Property, East Punjab, Julundur, AIR 1950 EP 175 (A), in which in considering S.30 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 some other order had been made. In my opinion, this decision has no application to the present case, because in that cse the appeal was not by the person i....
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....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 been referred to see if there are general principles which can be extracted which will guide the Court in approaching the question as to what the words ''person aggrieved" mean in any particular statute". If I may say respectfully I fully endorse this approach. I am now in a position to examine the Advocates' Act but before I do so I must refer to a case near in point to this case, than any case considered before." Analysing the provisions of the Advocates Act, 1961, the Apex 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 ....
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....e complainant and the advocate or the Bar Council to take the matter further if they choose. In no event the Advocate General is in the nature of a party having independent rights which he can claim are injured by the decision. The decision does not deny him anything nor does it ask him to do anything. It is thus that Lord Denning says that in these disciplinary proceedings the Attorney 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 to hear the case. In our country the Advocate General does not represent the Executive or the Legislature or the Judiciary in disciplinary proceedings before the disciplinary committee. His function is advisory and more akin to an amicus curiae. He is not to take sides except in so far his arguments lend weight to t....
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....petent 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 Inspecting Assistant Commissioner in the High Court. Learned counsel for the respondent raised a preliminary objection that the appeal is not maintainable and that only Commissioner can file the appeal. Overruling the objections, the Division Bench of the High Court held that the Inspecting Assistant Commissioner was a person aggrieved. The following was held in page 729: "In the case of Ebrahim Aboobakar v. Custodian-Genral of Evacuee Property, AIR 1952 SC 319), the person on whose information an enquiry 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 initiate....
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....thority should have a right of appeal." 23. One more case which is relevant to be noted is the judgment of the Apex Court in Registrar of Companies v. Rajshree Sugar & Chemicals Ltd. (2000 [6] SCC 133). A complaint was filed 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 incompetent to file appeal. A question arose as to whether the Registrar of Companies can be treated to be an "aggrieved person". Facts of the case have been noted in paragraphs 3 and 4 which are as follows: "3. The issue to be decided in this appeal relates to an offence allegedly committed by the respondents under S.113 of the Companies Act, 1956 (referred to as "the Act"). The complaint was filed by the appellant against the respondents on 28-8-1992 alleging that....
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....inapplicable to offences under S.113 of the Act. There is, in any event, no justification to interpret the words "person aggrieved" as used in S.469(1)(b) restrictively particularly when, as in this case, the statute creating the offence provides for the initiation of the prosecution only on the complaint of particular persons. Having regard to the clear language of S.621 of the Act, we have no manner of doubt that the appellant would be a "person aggrieved" within the meaning of S.469(1)(b) of the Code in respect of offence (except those under S.545) against the Companies Act. 24. Now 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 Appellate Board. Appeal was filed by the Directorate of Enforcement against the order of the Appellate Board....
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....Court only on 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 Court" means- (i) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and ii) 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 respodnent, any of the respondents, ordinarily resides or carries on business or personally works for gain. The Madras High Court held that since only the Central Government can 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 trea....
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....n statutorily authorised to file an appeal against the order of the Appellate Board at the instance of the Government of India or otherwise. If the quasi judicial Tribunal is expected question the orders of the appellate bodies, a specific power has to be given to the initial Tribunal under the relevant statute. Under Sections 253 and 256 of the Income-tax Act the Income-tax Officer who passes the original order of assessment in his capacity as 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 initial quasi judicial authority to file an appeal against the reversal of its judgment by the appellate authority to a further appellate or revisional forum. Such a statutory provision is necessary for the reasons afore-stated as otherwise, it will lead....
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.... 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 4 of the counter affidavit is quoted below: "4. At the outset it is submitted that the Assistant Director of Enforcement is both empowered to investigate cases and also act as quasi judicial authority for adjudicating contraventions of FEMA and also to file appeals on behalf of the Central Government. In this case, another Assistant Director and not the Adjudicating Authority himself has preferred an appeal and there is no bar under FEMA, 1999 any Assistant Director to file an appeal against the 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 ....
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....the Adjudicating Authority. Judgment of the Madras High Court in Director of Enforcement, Madras's case (supra) was relied. In the above case, learned counsel for the respondent has relied on the Notification dated 22.09.1989 which had been quoted in the judgment 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 and dissatisfied with the judgment of the Appellate Authority. It is useful to quote paragraphs 8, 15 and 16 of the judgment: "8. Mr. Ashok Bhan, learned Counsel appearing on behalf of the respondents, however, relied upon a notification dated 22.09.1989, which reads as under : "In exercise of the power conferred by subsection (1) of S.4, read with clause (e) of S.3 of the Foreign Exchange Regulation Act, 1973 (....
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....ing 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 Central Government, should act as an impartial Tribunal. An adjudicating authority, therefore, in absence of any power conferred upon it in this behalf by the Central Government, could not prefer any appeal against the order passed by the Appellate Board." 29. Proposition laid down by the Apex Court in the aforesaid case is that the Special Officer who files an appeal is not entitled to file an appeal on behalf of the Central Government unless there is a specific or general order authorizing him to file 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 a....
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.... than those referred to in Section 17(1); and (ii) an order of the Special Director of Appeals. Under Section 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 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 no remedy against such an order. The right of appeal given to the person aggrieved has to be given meaning and purpose which may advance the object of the Act. Denying right of appeal against any orde....