Madras High Court
N.Chandrasekara Vellayan vs The Director Of Enforcement on 24 August, 2022
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD)No.2752 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.08.2022
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
W.P(MD)No.2752 of 2013
N.Chandrasekara Vellayan ... Petitioner
Vs.
1.The Director of Enforcement,
(Foreign Exchange Management Act)
Shastri Bhavan, Haddows Road,
Nungambakkam, Chennai.
2.Vivekanandan
3.V.Sivakanth
4.V.Sasikanth ... Respondents
(R3 and R4 are impleaded vide Court order dated 29.04.2021 in
W.M.P(MD).No.4112 of 2017 in W.P(MD).No.2752 of 2013)
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Mandamus, to direct the first
respondent to pass orders on the petitioner's representation dated
12.09.2012 seeking to take action for the violation under Regulation 7 of
the Foreign Exchange Management (Acquisition and Transfer of
Immovable Property in India) Regulation, 2000.
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W.P(MD)No.2752 of 2013
For Petitioner : Mr.M.Saravanan
For Respondents : Mr.R.Vijayarajan (for R1)
R2-died
Ms.J.Mariaroseline (for R3 & R4)
ORDER
The present writ petition has been filed seeking for a writ of mandamus directing the first respondent to pass orders on the petitioner's representation, dated 12.09.2012 seeking to take action for the violation under Regulation 7 of the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulation 2000 (hereinafter referred to as 'FEMA').
2.According to the writ petitioner, he owned a plot in Plot No.8 within Tiruchirapalli Municipal Corporation Limits and the said plot has been approved by the Corporation and he has also paid the development charges. After obtaining the building plan approval, the petitioner is said to have constructed a residential house in the said plot. According to the petitioner, the second respondent through his agent attempted to alter the southern boundary of his house site so as to encroach and grab a portion of the property. Hence, he lodged a complaint before the Inspector of 2/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.2752 of 2013 Police, Woriyur. Based upon his complaint, an FIR was registered as against the second respondent herein in Crime No.670 of 2011 on 01.06.2011.
3.The petitioner further submits that he has already filed a suit in O.S.No.329 of 2011 before the District Munsif Court, Tiruchirappalli, as against the second respondent and his agent and order of interim injunction has also been granted in his favour on 07.03.2011. Despite the said injunction order, the second respondent and his men have encroached upon a portion of his property by fencing the same. Hence, he has already filed a contempt petition in I.A.No.477 of 2011 in the said suit and the same is pending.
4.The petitioner has further submitted that on 19.11.2010, the second respondent has sold the land after converting it as a house site to a third party for a sum of Rs.10,50,000/-, eventhough the market price is more than Rs.60 lakh. While settling his property, the second respondent has sold a portion of the petitioner's property also to the said third party. 3/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.2752 of 2013
5.The petitioner has further contended that the second respondent is a Srilankan citizen and he is not entitled to sell any immovable property in India without prior permission of the Reserve Bank of India. Suppressing his identity as a Srilankan citizen, the second respondent, after making false statement before the registration authority, has executed the said sale deed. According to the petitioner, under Regulation 7 of Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulation 2000, such kind of sale is prohibited. The second respondent is not entitled to alienate any immovable property in India without permission from the Reserve Bank of India. The petitioner has further stated that the Srilankan citizenship of the second respondent has been admitted by him in the written statement filed by him in O.S.No.329 of 2011.
6.The petitioner has further contended that in view of the allegations as against the second respondent herein with regard to the violation of FEMA, he has given a representation to the first respondent herein on 12.09.2012. Since no action was initiated by the first respondent, the present writ petition has been filed. 4/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.2752 of 2013
7.The learned Standing Counsel appearing for the first respondent herein has filed a report to the effect that the second respondent had sold away the property in the year 2010 in favour of one Thirumagal, who is an Indian citizen, at the time of sale of the property. The same was a housing plot and not an agricultural property. The said Thirumagal has also sold away the same to one A.Vanaja, who is also an India citizen. In view of the aforesaid circumstances, the first respondent had arrived at a findings that the second respondent had not violated the provisions of FEMA and has closed the file. Hence, according to the learned counsel for the first respondent herein, after discrete inquiry, the allegations against the second respondent herein has been closed.
8.In view of the aforesaid facts, this Court finds that the petitioner's representation, dated 12.09.2012 has already been considered by the first respondent herein and appropriate decision has also been taken by the said authority. The first respondent has also filed a report before this Court. However, the learned counsel for the petitioner contends that unless the closure report is furnished to him, he will not be in a position to challenge the said proceedings of the first respondent herein.
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9.The learned counsel for the petitioner relied upon Section 13(1)B of the FEMA Act, 1999 and contended that an adjudicating authority, after recording the reason, can recommend for initiation of prosecution. He further contended that this includes a decision to close the complaint. Hence, he contended that such a report of the first respondent is amenable to an appeal contemplated under Section 17(2) of the FEMA Act, 1999. The report filed before this Court shall be taken as the order by the writ petitioner for being challenged under Section 17 of the FEMA Act.
10.The learned counsel appearing for the legal heirs of the second respondent herein contended that as per Section 13(1)B of the FEMA Act, 1999, only if the authority decides to initiate prosecution, such an order is an appealable order under Section 17 of the FEMA Act, 1999. On the other hand, if the authority decides not to initiate any proceedings and closed the complaint, such an order is not appealable as contemplated under Section 17 of the FEMA Act, 1999. Leaving the said question open, this Court passes the following order: 6/8
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(i)the prayer in the writ petition has already been considered and report has also been filed by the first respondent herein and a copy of the same has also been furnished to the writ petitioner.
(ii)In view of the aforesaid facts, with the liberty to the writ petitioner to file an appeal before the appropriate authority, this Writ Petition is disposed of.
(iii)The report submitted by the first respondent herein before this Court shall be treated as an order for filing an appeal before the appropriate authority. If such an appeal is presented within a period of four (4) weeks from the date receipt of a copy of this order, the same shall be entertained by the appellate authority subject to the maintainability, without any reference to the issue of limitation.
24.08.2022 Index : Yes / No Internet : Yes / No Rmk 7/8 https://www.mhc.tn.gov.in/judis W.P(MD)No.2752 of 2013 R.VIJAYAKUMAR ,J.
Rmk Order made in W.P(MD)No.2752 of 2013 Dated:
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