Madras High Court
Union Of India Rep. By The vs Shri Ananda Natarajan on 23 July, 2015
Equivalent citations: AIR 2016 (NOC) 18 (MAD.)
Author: K.B.K.Vasuki
Bench: R.Sudhakar, K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.07.2015
CORAM :
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
AND
THE HONOURABLE MS.JUSTICE K.B.K.VASUKI
C.M.A.No.1731 of 2003
and CMP.11012 of 2003
Union of India rep. by the
Director of Enforcement,
Enforcement Directorate,
6th floor, Lok Nayak Bhawan,
New Delhi-110 003. ... Appellant
Vs
Shri Ananda Natarajan ... Respondent
Prayer:- Civil Miscellaneous Appeal is filed under Section 54 of the Foreign Exchange Regulation Act 1973 r/w Section 49 of the Foreign Exchange Management Act, against the order dated 4.4.2003 made in Revision Petition No.36 of 2001 by the Appellate Tribunal for Foreign Exchange.
For Appellant : Mr.M.Dhandapani
For Respondent : Mr.M.Abdul Nazeer
JUDGMENT
(Judgment was delivered by K.B.K.VASUKI, J.) This Civil Miscellaneous Appeal is filed by Union of India, represented by Director of Enforcement against the order made in RP.No.36/2001 passed by the Appellate Tribunal for Foreign Exchange, New Delhi.
2.The respondent herein was issued with a show cause notice by way of memorandum dated 31.12.1999 by the Adjudicating Authority i.e., Assistant Director, Enforcement Directorate, Chennai for his being found in possession of foreign exchange valued at Rs.69,064/- without the previous, general or special permission of the Reserve Bank of India in contravention of the provisions of Section 8(1) of the Foreign Exchange Regulation Act 1973. The case was adjudicated upon by the Assistant Director in the office of the Deputy Director of Enforcement vide order dated 12.5.2000, thereby acquitting the respondent herein of the above charges and ordering release of the seized foreign currencies from his brief case and residence to him. It is ordered so, on the ground that as the value of the seized foreign currencies is less than US $ 2000, the charge does not attract section 14 and the Enforcement has also failed to prove unauthorised acquisition of foreign exchange by the respondent herein.
3.Questioning the legality, propriety and validity of the order of the Assistant Director, Revision Petition No.36/2001 was filed by the Director of Enforcement before the Appellate Tribunal for Foreign Exchange, New Delhi. The Tribunal after examining the records, found that the charge against the respondent herein was not proved by the prosecution and agreed with the findings of the Adjudicating Authority and accordingly dismissed the Revision. Hence, this Civil Miscellaneous Appeal before this court by the Director of Enforcement.
4.The substantial question of law that arises for consideration in this appeal is as follows:
"Whether the Hon'ble Appellate Tribunal for Foreign Exchange is right in dismissing the Revision Petition without appreciating the materials available on record and without any consideration of provisions of FERA, 1973 and application of Section 71(3) r/w Section 8(1) of FERA, 1973."
5.Heard the rival submissions made on both sides and perused the materials placed before this Court.
6.Before going into the merits of the case the legal objection to be first considered herein is against the locus standi of the Director of Enforcement to maintain the present appeal before this Court. It is contended herein that as the Director of Enforcement is not the aggrieved party, the officer is not authorised to file the present appeal. It is contended so by relying on the decision of the Hon'ble Supreme Court reported in (2007) 3 SCC (Cri) 531 (Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and another). The Apex Court has in the aforesaid decision, from para 13 onwards dealt with the powers of the Central Government to appoint officers for the purpose of enforcing the provisions of the Act and exercise of such powers by issuing due notification, delegating specific functions under the Act upon the specific officers. While doing so, the Apex Court has in para 17 of its order referred to the earlier judgment of our High court reported in AIR 1981 Mad 80 (Director of Enforcement v. Rama Arangannal), wherein, this Court has observed that "the Explanation to Section 54 of the Foreign Exchange Regulation Act, 1973, treats only the Central Government as an aggrieved party for the purpose of filing an appeal to the High court in respect of orders passed by the Foreign Exchange Regulation Appellate Board under that section and only the Central Government can file and prosecute an appeal against the order of the Appellate Board and not any other authority and 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 Board". The same was followed by the Punjab and Haryana High Court in the decision reported in (1985) 6 ECC 55 (Director of Enforcement v. Lal Chand). The Apex Court by applying the views of the Madras and Punjab and Haryana High Courts, observed that the Adjudicating Authority, in the absence of any power conferred upon it by the Central Government, could not prefer any appeal against the order passed by the Appellate Board.
7.In the case in hand, admittedly no notification for appointing the Director of Enforcement as the competent authority for enforcing the provisions of the Act and delegating specific functions under the Act to him, was produced before us. Though the learned standing counsel for the appellant undertook to produce one such notification, he failed to do so. That shows, no notification was issued by the Central Government. Thus, in the absence of any notification passed by the Central Government for specifically empowering the Director of Enforcement to enforce the provisions of the Act and delegating him with specific functions under the Act, the appellant herein i.e., Director of Enforcement cannot be treated as aggrieved party and has no locus standi to file this appeal and the Civil Miscellaneous Appeal is hence liable to be dismissed on the ground of maintainability and the substantial question of law is accordingly answered against the appellant.
8.In the result, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
[R.S.J.] & [ K.B.K.V.J.]
23.07.2015
Index:Yes/No
Web:Yes/No
rk
To
The Appellate Tribunal for Foreign Exchange, New Delhi.
R.SUDHAKAR, J.
AND
K.B.K.VASUKI, J.
rk
CMA.No.1731 of 2003
23.07.2015
.......
SA.2137 of 2001
The plaintiff temple is the appellant herein. The present second appeal is filed against the concurrent judgments of the trial court as confirmed by the lower appellate court.
The suit in O.S.177/90 is filed by the plaintiff for declaring the plaintiff's title to the suit property and for recovery of vacant possession of the suit property. The plaint proceeds as if the suit property belongs to the temple by way of devadayainam vide TTD no.111 and the grant was confirmed till the temple was maintained from and out of the income from the same and the property was registered under Inam property Act and the same has been maintained so, by the first defendant who was the hereditary trustee of the plaintiff temple and he had been treating the income of the property as temple property and utilised the same for maintenance of the temple and the first defendant has been in possession and enjoyment of the same in his capacity as hereditary trustee of the same and in order to protect the property, on behalf of the temple and after the Tamil nadu Estate and Inam Act, abolition of concervserion fo royotwari act came into force, steps are taen to obtian ryotwari patta in repect of suit preopryt belonging of the temple and the ryotwari patta was duly issued to the temply by the settlemnt tahisdlar and patta issued byt ehs ettment tahsidlrw as set asid eby the Inam tribunal in CMA.339/ by the first defendant claiming inidepednent right over the suit proepryt and on the failure of the temple to produe relevant doucemtns, before the appealtate autority, the order of the settlemtn tahsidlar was set asid e and ryotwari patta was issued in the name of the first defnedant and no steps is taken to file further appela o agisnt the order of the settlement taislder. Whiel so, the first defendant was remvoed from the hereditary trusteeship by the HR&CD. Hence, he preferred a usit aginst the same and the same was now culminated and pendign as apepal ebffore the supreme court. In the mean whielm, the executive officer wa spapoitned as temple who preferred an appeal with a delay of 30 days and the High cour of chennir efused to condone thedleya and appela was dimsised on the ground of delay. Thereafter, the first defendant had been continuting in posession adne oymet of the proepryt to the temple and by utiisling the income for the same for his personal use without any righ to do so and also sold a portion of the same to the defendants 2 to 10 during 1990 which compelletd the plaitniff to come forward with the fusit fo rhte relief during pendeyc o thte suti, the first defendnat and his legla heirs have ome forwarda s the defendants 2 to 11 to 13. the first defendant in thewritten statement filed by him during his lifetime, seriously resitted the claim of the tmeple. The first defendant opposed therelief by challengign the maintainability of the suit on the gound of limitaiton and by applying the principle fo resjudicata and by claiming presctive title on aderse possession. The suit relief was also opposed by the defendant 2,4,9 10, and 11 to13 on the same ground as raised by the first defendant. The contesting parties, in support of their respective contentions during trial, examined the executive officer HRCE as and A25, B1 to B18 documents. The trial court on the basis of the available evidence, arrived at the conclusion that though the grant was made in favour of the temple in 1862 vide Ex.A2 and though the property was treated as temple property in Ex.A2 to A7 auditors reprot for the temple, the same do not establish the exclusive title of the temple in respect of the suit property. Having regard to Ex.A16 patta issued in 1805 in favour of the poojari kuppaiyan in respect fo the suti property, and Ex.B17 jari mania patta issued in the name fo the same person and Ex.B1 the ryotwari patta issued by the inam tribunal under Ex.A3 and A4 patta issued by the special Tahsildar under Ex.B7, under Ex.A7 extract of permanent register for inam for the faslis 1620 and fasli for 1342 and other documents produced on the side of the defnednat and the doucemtnarye vdiecne adduced on the side of the defendnt would prove that the patta wa issued to the indiviudal kupainarasi who was the predeceassor in title of the defendant as early as 1805 as such, the plaitniff cannto be held to be the owenr on the strenfth of A2 patta issued in the year 1962 and the property grtnted as kuppannarsi was later on partitioned betwene kuppanaris and others and the same has been since the date of patta, in possession and neujoyment predecessor in title and therafter in the hands of the defendant and therafter with her legal herisa nd the pruchaser from her and there was no evidence to show that the same was teratedas temple proepryt and the income form the same was utilised for the temple purpose. It si the first deendant and his legal heirs who were enttiled to kudivaram . The trial court has also held that th usti having not been filed for delcaration within 3 years from the date of order passed by the inam tribunal in 1972, and from the date of issuance of ryotwari patta inf avoru fo the fist defendnat during 1978 is hence barred by limitation. The trial court also arrived at the cocnlusion that the first ddefnenat havign claimed the defendants tittle in repsect of the suti preroty as early as in 1973, abd having obtained ryowari patta in 1978, the first defendant by her open, continue, uninterrupted and adverse possession from 1973 to the knowledge of the temple form 1973 obtained prescribed title in respect of the suit property and the claim fo the plaintiff's temple if any is lost. The trial court also found that the issue relating to right of thepartied for obtainign patta having been utlimately decided by mani, the same cnanot be permtited to reagistated by way fo civil suit and the civil suit is barred by resjudicata. The trial court on the absis of such findings, held the tempel to disentitled to get the suti relief and dismsied the sut Aggireved agaisnt the same, theplaintif fpreferred AS.169/2009 before the lwoer apeplalte occur.t the lower appelalte court agreed with tehe findign sof the trial court, with regard to maintainability f the suit on the ground of limtiation and the claim fo the firt defendant for independent title over the suit proepryt on the basis of Ex.B1, B4, B7, B16 to B18 and her claim for prescriptive title by the adverse possession and accordingly dimsised the appeal filed by the palintiff temple. Hence, this second apepal was filed before this court.
Originally the second appeal was dismissed by this court on the ground that both the courts below have considered on appreciation of evidence pertaining t the title of the property and ultimately found the appellant temple to have failed to establish their title to the suit preopryt. The correctness of the same was challenged by way of civil appeal before the apex court. The apex court set aside the judgment and decree of this court and remanded the matter for fresh disposal for fresh disposal of the second appeal in accordance with law and the parties are given liberty to raise all factual and legal issues as permissible in law.
After the remand, this court by order dated 4.11.2013 framed 9 substantial question fo alw for consideration of this court and the same were karuppaiah J. by order dated 20.2.2004 reframed as follows:
during the pendency of this appeal, both the appellant/plaintiff and the defendants have come forward with CMP.877 and 353/2014 for receiving additional documents on their sides and this court by order, 4.2.2105, on consent of the parties, allowed CMPs and received the additional documents as Exs.A26 to A40 on the plaintiff side and B19 to 24 on the defendants sides.
Heard the rival submissions made on both sides and perused the records.
..........
SA.1535 of 2006 The unsuccessful sixth defendant is the appellant herein. The suit was originally filed by the Coimbatore committee Congress represented by its President and one S.N.R.Chinnasamy Naidu against one C.Subramnaian and Natarajan for declaring that the second defendant Natarajan is not trustee of District congress committee and for issuing injunction directing him to deliver the suit trust property and for issuing permanent injunction restraining the second defendant from operating the bank account of the with the bank of Baroda either directly or any other person authorised by the second defendant and for second defendant to render proper and accounts of the ..for the all the three years. The suit was, during the pendency of the suit subjected to amendment not only regarding the cause title , but also regarding the person against whom the relief was sought for. According to the palitniff, the suit property was purchased in the name of the second plaintiff S.N.R.chinnasamy Niadu out of the funds of the District congress committee by virtue of sale deed dated 20.6.1968 and a trust was created in respect of the suit property vide registered trust deed dated 21.8.1961 and the second plaintiff and the person holding at the president were trustees to be in the management of the same and the second plaintiff and first defendant appointed as life trustees and at that time, the second defendant was also one fo the memebrs of the congress organisation and during 1969 there was a vertical split in the organisation. And there was two orgiansiations ie.v. Congress I and II and the second defendant joined the rival organisation and started action against the interest of the trust posing himself as a trustee and became disentiteld to anage the trust properyt and funds and to be in possession and control of the trust proepryt and funds. By contending that the suit came to be filed for the rleif as stated supra.
Durign the oendency fo the same, the cause titel regardign the first plaintiff was amnedn and then president Coimbatore Distrit congrrss was substiuted in tehplace of original .. during the pendeyc o the same, the preseitn and Dr.S.N.r.venkatslu was appoitned as one of the .. and he was appointed impleaded as third defendant.during the pendneyc o the plaintiff, the defendants 1 and 2 did which compelled the plaitniff two impleadmenets the defendnas 3 to 5 who took thecontrol of the trust proepryt and started .....after thedeath of the second defenant. Subsequently, fourth defendant died and sixth defendant who was mamagnign the affairs of the proepryt was hence brought on record. Consequently, the suit relief was amended, thereby claiming the suit relief against the defendants 3,5, and 6. it is also clarified in theplaint that the plaintiff 1 and 3 as the president of the congress comitted and the thrid defendant is life truese are entitled ot prosecc seek the erleid and other reliefs. The seventh defendant was also impleaded as one of the party to the suit.
The second defendant while alive dirng his life time, filed its written statement opposed the relief stating that the owner of the proepryt is the first defendant and the same itself is nto a trust and the doucetn dated 20.1.1968 came to be exeucted only for thepurpsoe of administrative purpose and no trust was created in repsect of the same and the first plaintiff is a corproate body the registerd body is nto a jurisdict person to file the suit... politac prty. It is also his case that the peson referred to in theturst deed were nto competent to deal with theproeryt and ther is no locus standi to run the trust and has no right to manage the property and the appointemnt of the second defenant and first plaintiff is.......
It is also stated that the suit is as framed for......... (Pg12) is bad for non joinder so called trustees as plaintiff and for not impleading and not impleading the current owner of the property the District jana party and the suit is also bad for mis joinder of party i.e. Second defendant who has no independent right. It is also his case that after the split in theparty the ongress O party (pg14) was known as orgnaisation congress or ........ and the same continued to be in possession and enjoyment of old congress party and it is held so by the RDO cum executive first class Magistrate in MC.1/1978 initiated under section 145 Cr.P.C. and other group whose split and formed themselves to separate group were not permitted to enter the group and congress o party then merged with jana party in the year 1971 and all the assets and liability were taken over by Jana party and the second plaintiff was only member of congress o party and continued to be a member of the janatha and is not competent to maintain the suit and the first defendant did not question the title and ..janatha party and the congress o party and thereafter Janatha party has been enjoying the property as without continuously all the right of the parties and the claim made by the plaintiff is barred by limitation and by adverse possession. T and the sixth defendant after brought on record filed the written statement reiterating the same stand. The contesting parties have in support of their respective claims, made in the suit , examined the present and past president of District congress and their witnesses as PW1 to PW3 and sixth defendant himself as DW1 and Exs.A1 to A7 and Exs.B1 to B69 documents on both sides.
during th pendeyc of thesut, the defendants 3 & 5 were at the intance of ht eplaitniff exonerated.
The trial court on the basis of the available evidence, arrived at the conclusion that the suit property belong to the trust vide Ex.A2 and the trustees are entitled to file the suit and filed the suit in such capacity and the suit is hence maintainable. and having the second plaintiff and the first defendant as life trustees and the first plaintiff is the present of the trust is the third trustee and even after the split, the congress party has been existence and as per the tterms fo the trust deed p.34 the trust property to be in possession and managemnet of District congress commttee and no evidence was produced to show that the same was taken over by the janatha party and transferred the naem fo the janatha party and the possession fo the contsting defendant were nto shown to be in the capacity in which the property had been in possession and enjoyment of the contesting defendant. And the docuemtns prdouce don theside fo the defendant do not imporve the case of the defendants as the same do stand either in the name of Dsitrict committee or obtained after the suit and the psosession and enjoyument fo the sixed defendant is without any right over the suti preoryt and he cannot himself as tursee fo the Distrc congress commtitee and he is bound to deliver the vacantu sutipeopryt to the plaitniff trustee and is bound to rndr the incoem fo the sturst. Aggrieed agaisnt the same, the sixth defendant filed AS.. the lower appellate court by judgment and decree dated 28.3.2005, after duly appreciating and anlaysing the evidence and going into the correctness f the findings rndered by the trial court based on the evidence, found that the trust was duly created fro specific social and welfare obeject and trust proepryt was duly delivered to the turst and as per the terms of the trust, the trust proepryt cannot be subject to policitcla changes and the defendant who is the presient of janatha paryt has no manne of right over the proepryt, and the defnedants 3, 5 an 6 aare nto entitled to the suti proepryt and as they were nto tyurstees of the trust, and without any rigth to manage the suti and are bound to delivery the posesison fo the suti prerpyt. pg.51 and on the basis the such findigs, confirmed the jdugemnet and decree of the tiralscourt and dismissed th apepal. Ehnce this second appeal.
The seecond apeplw as on earlier occuasison dismsied on 30.1.2006 pg.65 by yupholdign the findings of the courts belwo and by finding that no question fo law much less substantial question fo law arise warranting the admission of the second apepal under section 100 of the C.P.C aggreiveda gaisnt the same, the sixth defendnaat preferred further appeal by way of SLP before the Supreme court. The Apex court has after granign special leave and afer taking apeal as civil appeal as 4442/2007 disposed of the same by setting aside the impugned order of the highc orut and remanded the matte afresh after formulating substantial question of law regardign maintainability and other subs which may arise for consid. After remand, this court by order dated......24.9.2013, framed the substantial question fo law.
Whether the court below the suti...
heard the rivals usbmsision made on btoh sides.
.........
during th pendeyc of thesut, the defendants 3 & 5 were at the intance of ht eplaitniff exonerated.
......
As the second defendant died during the pendency of the suit, the cause title of the first plaitniff was amended and the president of the coimbatore distruct congress commtitee was impeased as the first plaintiff represented by its ... likewife, the second plas individual