Vil Appeal No 6071 NM of 1990
From the Order dated 31590 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No E258686 C with ECross47886 C Order No 54190 C
M Gauri Shankarmurthy K Swamy and P Parmeshwaran for the Appellant
Santosh Hegde and KR Nambiar for the Respondent
The Judgment of the Court was delivered by V RAMASWAMI J
The short question of law that arises for consideration in this appeal is as to what is the rele vant date for the purpose of calculation of the period of one year provided under section 35E3 of The Central Ex cises  Salt Act 1944 hereinafter called the Act
Briefly stated the question arises in the following circumstances
By order in Original No 34 of 1984 dated 28111984 the Collector of Central Excise Madras as an adjudicating authority within the meaning of the Act held as barred by limitation the demand from the respondent towards excise duty on biaxially oriental polypropylene films as set out in the show cause notice dated 25101983 and dropped further proceedings against the respondent
A copy of this order was attested by the Superintendent of the office on 21121984 and despatched to the respondent
It was received by the respondent on 21121984
The Central Board of Excise and Customs hereinafter called the
Board after consideration of the order on 11121985 directed the Collector of Cen tral Excise Madras under the provisions of Section 35E1 to apply to the Customs Excise  Gold Control Appellate Tribunal New Delhi for correct determination of the points arising out of the aforesaid order and accordingly the Collector filed the application before the Tribunal as provided under Section 35E4 of the Act
Before the Tribunal the respondent urged that the rele vant date of the Collector s adjudicating authority order for the purposes of Section 35E3 should be taken as 28111984 and not 21121984 when it was received by the respondent and on that basis the order of the Board under Section 35E1 of the Act should be held as beyond the 866 period of one year from the date of the decision or order of the adjudicating authority and therefore the application before the Tribunal was incompetent
The Tribunal accepted this contention and held that the application was not main tainable
In this appeal filed under Section 35L of the Act the learned counsel for the appellant contended that mere writ ing an order in file kept in the office is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant and that though the order of the adjudicating authority was made on 28111984 a copy of the same was sent to the respondent only on 21121984 and received by him on the very day and that therefore the limitation would start only at the earliest from 21121984
He stated that the order was received by the Board also only subsequent to 21121984
His further submission was that enabling the giving of the direction under Section 35E1 and the application under Section 35E4 in pursuance of that direction shall be treated as if a right of appeal given to the department
On this basis his argument was that the departmental authorities and the private parties are to be treated equally as aggrieved persons for the purposes of calculating the time for making the direction under Section 35E3 of the Act
Before we discuss the arguments of the learned counsel it is necessary to set out some relevant provisions in the Act
Section 35 of the Act provides for an appeal to a person aggrieved by any decision or order passed under the Act by a Central Excise Officer lower than a Collector of Central Excise  and that such an appeal will have to be filed within three months from the date of the communica tion to him of such decision or order
Clause 5 of Section 35A requires that on the disposal of the appeal the Collec tor Appeals shall communicate the order passed by him to the Appellant the adjudicating authority and the Collector of Central Excise Section 35B provides for a right of appeal to any person aggrieved by among other orders 1 an order passed by the Collector Appeals under Section 35A and 2 a decision or order passed by the Collector of Central Excise as an adjudicating authoritY Such an appeal will have to be filed within three months from the date on which the order sought to be appealed against is communicat ed to the Collector of Central Excise or as the case may be the other party preferring the appeal
 The Appellate Tribu nal also is required to send a copy of the order passed in the appeal to the Collector of Central Excise and the other party to the appeal
Section 35E1 authorises the Board of its own motion call for and examine the record of any proceeding in which a Collector of Central Excise as 867 an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may by order direct such Collector to apply to the Appel late Tribunal
or as the case may be the Customs and Excise Revenues Appellate Tribunal established under Section 3 of the for the determination of such points arising out of the decision or order as may be specified by the Board in its order
 As sub section 2 is also relevant for considera tion that may also be set here and that reads 2
The Collector of Central Excise may of his own motion call for and examine the record of any proceeding in which an adjudi cating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legal ity or propriety of any such decision or order and may by order direct such authority to apply to the Collector Appeals for the determination of such points arising out of the decision or order as may be spcified by the Collector or Central Excise in his order
It may be seen that the direction to file an appeal under these two sub sections by the Board and the Collector as the case may be is to the very adjudicating authority who would otherwise be bound by his own order and not ex pected to be aggrieved by the same
When an appeal is filed on such direction the appellant will be the adjudicating authority himself and not the authority who gave the direc tion
Sub Section 3 of Section 35E of the Act which deals with the limitation for exercise of the powers under sub sections 1 and 2 of the Act and which is the relevant provision for consideration in this appeal reads as follows No order shall be made under sub section 1 or subsection 2 after the expiry of one year from the date of the decision or order of the adjudicating authority
 At this stage itself we may state that sub section 4 of the Act provides that the adjudicating authority shall file the application before the Tribunal in pursuance of the order made under sub section 1 or sub section 2within a period of
three months from the date of communication of the order under sub section 1 or sub section 2 to the adjudicating authority
 868 The words from the date of decision or order used with reference to the limitation for filing an appeal or revision under certain statutory provisions had come up for consider ation in a number of cases
We may state that the ratio of the decisions uniformly is that in the case of a person aggrieved filing the appeal or revision it shall mean the date of communication of the decision or order appealed against
However we may note a few leading cases on this aspect
Under section 25 of the Madras Boundary Act 1860 the starting point of limitation for appeal byway of suit al lowed by that section was the passing of the Survey Offi cer s decision and in two of the earliest cases namely Annamalai Chetti vs Col
JG Cloete Mad 189 and Sesharnrna vs Sankara Mad 1 it was held that the decision was passed when it was communicated to the parties
In The Secretary of State for India in Council vs Gopisetti Narayanaswami Naidu Guru ILR 34 Madras 151 construing a similar provision in the Survey and Boundary Act 1897 the same High Court held that a decision cannot properly be said to be passed until it is in some way pro nounced or published under such circumstances the parties affected by it have a reasonable opporunity of knowing what it contains
Till then though it may be written out signed and dated it is nothing but a decision which the officer intends to pass
It is not passed so long it is open to him to tear off what he has written and write something else In Raja Harish Chandra Raj Singh vs The Deputy Land Acquisi tion Officer  Anr 1962 1 SCR 676 construing the proviso to Section 18 of the Land Acquisition Act which prescribed for applications seeking reference to the Court a time limit of six weeks of the receipt the notice from the Col lector under Section 122 or within six months from the date of the Collector s award whichever first expires this Court held that the six months period will have to be calcu lated from the date of communication of the award
In Asstt
Transport Commissioner Administration UP  Ors
vs Sri Nand Singh construing the provision of Section 15 of the UP Motor Vehicle Taxation Act it was held that for an aggrieved party the limitation will run from the date when the order was communicated to him
The ratio of these judgments were applied in interpret ing section 33A2 of the Indian Income Tax Act 1922 in Muthia Chettiar vs CIT ILR with reference to a right of revision provided to an aggrieved assessee
 Section 33A1 of the Act on the other hand authorised the Commissioner to suo moto call for the records of any pro ceedings under the Act in which an order has been passed by any 869 authority subordinate to him and pass such order thereon as he thinks fit
The proviso however stated that the Commis sioner shall not revise any order under that sub section if the order sought to be revised has been made more than one year previously
Construing this provision the High Court in Muthia Chettiar s case held that the power to call for the records and pass the order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo moto power
Similarly in another decision reported in Viswanathan Chettiar vs Commis sioner of Income Tax Madras construing the time limit for completion of an assessment under section 342 of the Income Tax Act 1922 which provided that it shall be made within four years from the end of the year in which the income profit and gains were first assessable it was held that the time limit of four years for exercise of the power should be calculated with reference to the date on which the assessment or reassessment was made and not the date on which such assessment or reassessment order made under Section 342 was served on the assessee
It may be seen therefore that if an authority is authorised to exercise a power or do an act affecting the rights of parties he shall exercise that power within the period of limitation prescribed there for
The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him
The date of such order or decision is the date on which the order or decision was passed or made that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locuspaetentiae
Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand
The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time
So far as the party who is affected by the order or decision for seeking his remedies against the same he should be made aware of passing of such order
Therefore Courts have uniformly laid down as a rule of law that for seeking the remedy the limitation starts from the date on which the order was communicated to him on the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it contains The knowledge of the party 870 affected by Such a decision either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him
Otherwise the party affected by it will have no means of obeying the order or acting in conformity with it or of appealing against it or otherwise having it set
This is based upon as observed by Rajamanner CJ in Muthia Chettiar vs CIT supra a salutary and just principle
The application  of this rule so far as the aggrieved party is concerned is not dependant on the provisions of the particu lar statute but it is so under the general law
In Muthia Chettiar s case supra both these aspects came up for consideration
The relevant provisions consid ered therein were Section 33A1 and 2 of the  Indian Income Tax Act 1922 which read as follows 33A 1 The Commissioner may of his own motion call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him and may make such inquiry or cause such inquiry to be made and subject to the provisions of this Act may pass such order thereon not being an order prejudicial to the assessee as he thinks it Provided that the Commissioner shall not revise any order under this sub section if a x x x b x x X x c the order has been made more than one year previously 2 The Commissioner may on application by an assessee for revision of an order under this Act passed by any authority subordinate to the Commissioner made within one year from the date of the order call for the record of the proceeding in which such order was passed and  may pass such order thereon as he thinks fit Interpreting these provision the Court observed In a case falling under sub section 1 the Commissioner acts of his own motion
There is no question of the 871 aggrieved party invoking his jurisdiction there can therefore be no occasion to apply the rule enunciated in Secretary of State for India in Council vs Gopisetti Narayanaswami Naidu Mad 15 1
It may be said that the Commissioner s power to call for the record ceases with the lapes of one year from the date of the order by the subordinate authority
But in a case failing under sub section 2 the party aggrieved has got to take the step of applying for revision and he is allowed one year from the date of the order
The provision is therefore certainly in the nature of a time limit for the applica tion for revision The decision in Viswanathan Chettiar s case supra related to the reassessment power under Section 342 of the Income Tax Act 1922 which read as follows No order of assessment under Section 23 or of assessment or reassesment under sub section 1 of this section shall be made after the expiry in any case to which clause c of sub section 1 of section 28 applies of eight years and in any other case of four years from the end of the year in which the income profits or gains were first assessa ble After referring to some of the provisions in the Act and some of the earlier decisions and in particular Muthia Chettiar s case supra the learned judges observed As we have already pointed out the time limit of four years for which sub section 2 of Section 34 provided was the period within which the Income tax Officer had to complete one stage of the proceedings that is the assessment of the income and determination of the tax payable and that stage could be completed by the Income tax Officer himself even if the terms of the order of assessment were not communi cated within that period of four years to the assessee
The rights of the assessee aggrieved by such an order of assessment have been specifically provided for by other sections of the Act
 Thus if the intention or design of the statutory provision was to protect the interest of the person adverse ly affected by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as com 872 mencing from the date of communication of the order
But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities  orders the date on which such power was exercised by making an order are the relevant dates for determining the limitation
The ratio of this distinction may also be found ed on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision
Section 35E comes under the latter category of an au thority exercising its own powers under the Act
It is not correct to equate the Board as contended by Sri Gaurishan kar Murthy to one of the two parties to a quasi judicial proceeding before the Collector and the Board s right under Section 35E to the exercise of the right of appeal by an aggrieved assessee from an order passed to its prejudice
The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subor dinate officers exercise their powers under the Act correct ly and properly
Where a time is limited for the purposes by the statute such power as under Section 33A2 of the Indian Income tax Act 1922 referred to in Muthia Chettiar supra should be exercised within the specified period from the date of the order sought to be reconsidered
To hold to the contrary would be inequitable and will also introduce uncertainties into the administration of the Act for the following reason
There appears to be no provision in the Act requiring the endorsement by a Collector of all orders passed by him to the Board
If there is such a prac tice in fact or requirement in law the period of one year from the date of the order is more than adequate to ensure action in appropriate cases particularly in comparison with the much shorter period an assessee has within which to exercise his right of appeal
If on the other hand there is no such requirement or practice and the period within which the Board can interfere is left to depend on the off chance of the Board coming to know of the existence of a particular order at some point of time however distant only administrative chaos can result
We are therefore of the opinion that the period of one year fixed under sub section 3 of Section 35E of the Act should be given its literal meaning and so construed the impugned direction of the Board was beyond the period of limitation prescribed therein and therefore invalid and ineffective
For the foregoing
reasons we are of the view that the Tribunal was right in holding that the application before them was out of time
This appeal is accordingly dismissed
There will be no order as to costs
VPR Appeal dis missed


Summary:
On 22190 a First Information Report was registered under section 120 B read with sections 161 162 163 164 and 165A of the Indian Penal Code read with Sections 52 51d and 5251c of the PreventiOn of Corruption Act 1947 read with sections 409 420 468 and 471 of the Indian Penal Code against 14 accused alleging that theyent ered into a criminal conspiracy obtained illegal gratifica tion in the form of money from BOFORS a Swedish company through the agent firmscompaniespersons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly using their official position as public servants caused pecuniary advantage to themselves BOFORS the agents and others in awarding con tracts to BOFORS for the supply of guns to the Government of India and in the transaction also committed the offences of criminal breach of trust heating of Union of India forgery and using of forged documents etc
The CBI commenced itsinvestigation during the course of which statements ofwitnesses were recorded and took into their custody 753 various documents and files relating to this BOFORS deal
The CBI moved an application before the Special Judge stating that the investigation of the case was to be con ducted not only in India but also in Switzerland Sweden and other countries that an important aspect of the inves tigation which was to be conducted in Switzerland was to collect documentary and oral evidence relating to all as pects of the accounts in banks in Switzerland to which remittances were made by  Ms AB Bofors from Sweden that the Director of the CBI requested the concerned authori ties in Switzerland for freezingblocking certain bank accounts relevant to this case and the Federal Depart 
ment of Justice and Policy Switzerland moved Judge of Geneva and the concerned Judge of Zurich that the relevant accounts in the bank had been blocked upto 2821990 and that request for judicial assistance from Switzerland in this  matter therefore should be made by 2821990 failing which the Swiss Law obliges the withdrawal of instructions to block the accounts the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 2021989 only on receipt of a Letter Rogatory from the competent judicial authorities in India
The C BI requested the Special Judge to send a Letter Rogatory request to Switzerland urgently for getting the necessary assistance in the investigation to be conducted in Switzerland lest very important and relevant evidence would remain uncollected and the cause of justice would be frus trated
The Special Judge allowed the application of the CBL Before the new Special Judge who assumed charge of the office from the previous Special Judge the appellant in Crl
A No 30691 filed a Public Interest Litigation under Article 51 A of the Constitution of India praying that no Rogatory letter be issued on the formal request of the CBI unless the allegations against named persons were estab lished to the satisfaction of the Court that no request for Rogatory or freezing bank account be made to Swiss Govt
unless the concerned persons were noticed and heard on the subject that the petitioner be permitted to join during inquiry in the capacity of public interest litigant that inquiry section 340 Cr
PC be held to determine the alleged offence committed by various persons and till then all proceedings of Rogatory be stopped
The Special Judge dismissed the petition and issued Note of Compliance and amended Letter Rogatory
754 The public interest litigant filed a criminal revision before the High Court
During the hearing of the case before the High Court several applications seeking impleadmentintervention were filed
Dismissing the revision the High Court held that the petitioner has no locus standi to maintain the petition and consequently the interveners also had no right to seek for impleadment or intervention and taking suo moto cognizance of the matter for the reasons assigned
in his order the judge directed issue of show cause notice to the CBI and the State Union of India as to why the proceedings initiated on the strength of the FIR dated 22190 pending before the Special Judge be not quashed against which the criminal appeals and the writ petition were filed in this Court
CrIA No 30491 is preferred by the Janata Dal against the order passed by the High Court rejecting its application filed before the High Court requesting the Judge to recuse himself from the proceedings
CrIA No 30591 is filed by the Janata Dal against the order of the High Court rejecting the application for impleadment of the appellant and other interveners and also issuing suo moto notice to the State and the CBI
A No 30691 is directed by the original petition er who filed the public interest litigation before the Special Judge challenging the first part of the order of the High Court dated 191290 dismissing his petition on the ground that he had no locus standi to file the petition
CrIA No 30791 is preferred by the Janata Dal ques tioning the correctness of the earlier order passed by the High Court refusing to allow the appellant s application for impleaamentintervention
A No 30891 has been directed by the Communist Party of India Marxist against the order of the High Court refusing to allow its application for impleadmentinterven tion
CrIA No 30991 is preferred by india Congress So cialist against the main order of the High Court dated 19121990 dismissing its application for impleadment and taking up suo moto cognizance for quashing the FIR
CrIA No 31091 is filed by the Union of India can vassing the legality and correctness of the order dated 5990 passed by the High Court and praying for a direction directing the High Court to decide the 755 maintainability of the public interest litigation as a preliminary question and for the deletion of the second respondent
The permission for deletion was granted
CrIA No 31191 is filed by the Union of India and the CBI questioning the second part of the order of the High Court dated 191290 namely taking suo moto cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings
initiated on the strength of the FIR be no quashed
The appellants in this appeal impleaded the High Court through its Registrar as a respondent
WP No 11491 is filed seeking certain directions relating to Bofors matter and  for quashing the later part of the order dated 191290 of the High Court
Dismissing CrIA Nos
304 3101991 and the Writ Peti tion No 11491 and allowing Crl
A No 31191 this Court HELD 1
Even if there are million questions of law to be deeply gone into and examined in a criminal case regis tered against specified accused persons it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants
766H 767A 2
The appellant in CrIA No 30691 has no locus standi to file the petition under Article 5 1 A as a public interest litigant to invoke the revisional jurisdiction of the High Court under Sections 397 read with section 401 of the Code of Criminal Procedure challenging the correctness legality or propriety of the order of the Special Judge and to invoke the extraordinary jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure for quashing the First Information Report and all other proceed ings arising therefrom on the plea of preventing the abuse of the process of the Court
767C E 3
The initiation of the present proceedings by the public interest litigant under Article 51A of the Constitu tion of India cannot come within the true meaning and scope of public interest litigation
767F 4
The appellants namely Janata Dal Communist Party of India Marxist and Indian Congress Socialist equally have no right of seek 756 ing their impleadmentintervention
For the same reasons the petitioner in WP Crl No 11491 has no right to file the Writ Petition as a public interest litigant
1767G 5
The suo moto action of the High Court in taking cognizance in exercise of the powers under Sections 397 and 401 read with Section 482 of the Code based on the convolut ed and strained reasoning and directing the office of the High Court to register a case under the title Court on its motion vs State and CBI cannot be sustained
767H 768A 6
The directions of the High Court calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the First Information Report dated 22190 be not quashed cannot be sustained
768B 7
All the proceedings initiated in pursuance of the First Information Report dated 22190 relating to Crime No RCIA90 ACU IV on the file of the Special Judge including the issuance of the Letter Rogatoryrequest as they stand now remain unaffected and they can be proceeded with in accordance with law
768D E