Kambli 1 wp1482.91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1482 OF 1991 ... 1. M/s.Videocon International Ltd. 2. Mr.Maheshwar V.Kasbekar ,,,Petitioners v/s. 1.Union of India 2.Joint Secretary, Government of India, Ministry of Commerce, 3.The Chief Controller of Imports & Exports 4.The Joint Chief Controller of Imports and Exports ...Respondents ... Mr.Kamal Bulchandani i/b Kamal & Co. for the Petitioners. Mr.R.V.Desai with Mr.Rajinder Kumar, Mr.R.B.Pardeshi and Mr.H.V.Mehta for Respondents. ... CORAM: D.K.Deshmukh & K.K.Tated, JJ DATED: 18th February, 2011 Kambli 2 wp1482.91 JUDGMENT: (PER D.K.DESHMUKH, J.) 1. Petitioners are manufacturers of colour TVs, Videos and other electronic items. Petitioners import interalia Colour Picture Tubes (CPT) and Video Tape Deck Mechanism (VTDM) for manufacturing electronic items. CPTs and VTDMs were listed in Appendix 6, List 8, Part-I at Sr.Nos. 821(5) and 821(79) respectively. By transfer, as permissible, Petitioners purchased Additional Licenses all dated prior to 21-3-1989 and endorsed under Para 215 of AM-88-91 Policy permitting imports of items listed under Appendix 6, List 8, Part-I as on the date of issue of the licenses. 2. On 21-3-1989 Public Notice No.109 deleted the items CPT and VTDM from Appendix 6, List 8, Part-I. On 28-5-1990, as the Petitioners were importing CPTs and VTDMs against the said licenses and since the same were allowed clearance by the Customs, the Respondent No.4- Joint Chief Controller of Imports & Exports issued abeyance Kambli 3 wp1482.91 order with the show cause notice to the Petitioners asking the Petitioners to show cause why the Petitioners should not be debarred from importing the aforesaid items. 3. The Petitioners challenged the same by filing a writ petition being Writ Petition No.1843 of 1990. That writ petition was disposed of by an order dated 26-6-1990 by this court. The court stayed the abeyance order, but liberty was granted to the Respondent No.4 to adjudicate the show cause notice. On 25-9-1990, the Respondent No.4 made an order debarring the Petitioners. The Petitioners challenged the order passed by the Respondent No.4 in Appeal. That appeal was heard and disposed of by the Additional Chief Controller of Imports & Exports by an order dated 31-1-1991. The Additional Chief Controller of Imports & Exports set aside the debarment order holding that the imports under the Additional Licenses despite public notice were valid. 4. The Respondent No.3- Chief Controller of Imports & Exports filed an appeal before the Central Government Kambli 4 wp1482.91 challenging the order passed by the Additional Chief Controller of Imports & Exports. In that appeal, the Central Government made interim order dated 5th April, 1991 granting exparte stay of the operation of the order dated 31-1-1991 passed by the Additional Chief Controller of Imports & Exports. 5. The Petitioners, therefore, filed this petition challenging the exparte order made by the Central Government contending that the appeal filed by the Respondent No.3 before the Central Government is not maintainable. This court by order dated 30th April, 1991 admitted the petition for final hearing and stayed the exparte order passed by the Central Government. The interim order passed by this court was challenged before the Supreme Court. The Supreme Court, however, did not entertain the Special Leave Petition. The interim order passed by this court in this petition, therefore, continues to operate. 6. We have heard the learned Counsel for both Kambli 5 wp1482.91 sides. It is an admitted fact before us that the Appeal in which the exparte order at Exh.J has been passed by the Central Government has been filed by the Respondent No.3 under Section 4M of the Import Export (Control) Act, 1947 (hereinafter referred to as the “Act”). It is also an admitted position that that appeal has been filed by the Chief Controller of Imports & Exports. It is also an admitted position that the order which is impugned in that appeal is passed by the Additional Chief Controller of Imports & Exports. The question that arises for consideration in this petition is, can a Chief Controller of Imports & Exports file an appeal under Section 4M of the Act before the Central Government challenging the order passed by the Additional Chief Controller of Imports & Exports. 7. The learned Counsel appearing for the Petitioners relying on the provisions of the Act as also the provisions of some other Enactments submits that only a party which is aggrieved by the order passed by the Additional Chief Controller of Imports & Exports or Chief Controller of Imports Kambli 6 wp1482.91 & Exports can file an appeal under Section 4M(1)(a) of the Act. The learned Counsel submits that whenever the Legislature wanted to make a provision for the departmental authorities to file departmental appeal against the order made by the authorities working in the same department, a special provision to that effect has been made. In support of that submission the learned counsel took us through the provisions of the Customs Act, Foreign Exchange Management Act, Income-tax Act. The learned Counsel also submitted that when the Additional Chief Controller of Imports & Exports decides the appeal under Section 4M of the Act, he acts as a delegate of the Chief Controller of Imports & Exports, and therefore an order made by the Additional Chief Controller as a delegate of the Chief Controller of Imports & Exports is virtually an order made by the Chief Controller of Imports & Exports himself and therefore, he is not competent to file an appeal against that order before the Central Government. The learned Counsel relied on the judgment of the Supreme Court in the case of Md.Sharfuddin v/s. R.P.Singh and ors, AIR 1961 SC 1312. Kambli 7 wp1482.91 8. The learned Counsel appearing for the Respondents, on the other hand, submits that the appeal which is filed by the Respondent No.3 before the Central Government under section 4M is in his capacity as a Head of the Department and therefore, such an appeal can be filed. The learned Counsel relied on the judgment of the Supreme Court in the case of State of Maharashtra v/s. Marwanjee F. Desai & ors, AIR 2002 SC 456. The learned Counsel also invited our attention to the judgment of the Supreme Court in the case of Bar Council of Maharashtra v/s. M.V.Dabholkar and ors, AIR 1975 SC 2092 to submit that the phrase “aggrieved person” is to be interpreted considering the provisions in the statute in which that phrase appears. The learned Counsel also relied on the judgment of the Supreme Court in the case of Shah & Co. v/s. The State of Maharashtra & Anr, AIR 1967 SC 1877 to contend that the provisions of the Customs Act, Income-tax Act and Foreign Exchange Management Act, which have been relied on by the learned Counsel appearing for the Petitioners cannot be Kambli 8 wp1482.91 considered as those statutes cannot be said to be para- materia statutes. 9. It is an admitted position that the debarment order which was challenged by the Petitioners before the Additional Chief Controller of Imports & Exports was passed under Clause (8) of the Imports (Control) Order, 1955. Perusal of Clause (8) shows that it vests power in the Central Government or the Chief Controller of Imports & Exports or an authorised officer to debar the licensee or the importer or any other person from importing certain goods. The debarment order was made by the Joint Chief Controller of Imports & Exports and is dated 25-9-1990. Paragraphs 43 and 44 of that order are relevant for our purpose. They read as under: 43. In exercise of powers vested in me under Clause 8 of the Import (Control) Order, I hereby debar M/s.Videocon International Ltd. and their Directors from receiving import licences, Customs Clearance Permits, obtaining allotment of imported goods from canalising agencies and importing goods from 1st October, 1990 till 31st March, 1995. This order, however, will not apply to Kambli 9 wp1482.91 Advance licences. As per the interim order made by the Single Judge of the Bombay High Court, this debarment order will take effect 4 weeks from the date of communication of the order to the party. 44. If M/s.Videocon International Ltd. wish to appeal against the order, they may do so before the Additional Chief Controller of Imports & Exports (Enforcement-cum-Adjudication) in this office in terms of clause 10(2) of the Imports (Control) Order, 1955, as amended within 45 days from the date of communication of this order. 10. It is clear that that order was made by the Joint Chief Controller of Imports & Exports in exercise of powers vested in him under Clause 8 of the Import (Control) Order, and appeal against that order was competent under Clause 10(2) of the Import (Control) Order before the Additional Chief Controller of Imports & Exports. Clause 10(2) of the Import (Control) Order reads as under: 10(2) Where any person is aggrieved by any action taken under sub-clause (1) or sub-clause (3) of clause 8 or clause 8A or sub-clause (1) of clause 9 he may prefer an apepal against such action to such authority as the Central Government may, by notification in the official Gazette constitute for the purpose of hearing appeals, within forty-five days from the date of communication of the action taken. Kambli 10 wp1482.91 11. It is, thus, clear that a remedy of appeal is provided against the order made under clause 8 to such authority as the Central Government may by the notification in the official Gazette constitute for the purpose of hearing appeals. In exercise of that power, the Government issued notification dated 27-3-1985. We have been given copy of relevant extract from “Hand Book of Procedures” published by the Ministry of Commerce. Paragraph 139 of that Book is relevant. It reads as under: 139. (1) In exercise of the powers conferred by sub-clause (2) of clause 10 of the Imports (Control) Order 1955, the Central Government has vide its notification dated 27-3-1985 constituted the authorities for the purpose of hearing appeals against the action taken under clause 8(1), 8A or 9(1) of the Imports (Control) Order, 1955: (a) Where the order is passed by a Deputy Chief Controller of Imports and Exports outside the Headquarters, the first appeal shall be decided by the respective regional Joint Chief Controller of Imports & Exports. The second appeal shall lie with the Addl.Chief Controller of Imports & Exports. (b) Where the order has been passed by a Deputy Chief Controller of Imports & Kambli 11 wp1482.91 Exports, Headquarters, the first appeal shall lie with the Joint Chief Controller of Imports & Exports (Enforcement-cum-Adjudication) at the Headquarters. The Second appeal shall lie with the Addl.Chief Controller of Imports & Exports. (c) Where the order has been passed by a Joint Chief Controller of Imports & Exports either in the regional offices or at Head quarters office of CEI & E the first appeal shall lie with the CEI & E/Addl. CCI & C. The second appeal shall lie with the Appellate Authority in the Government. (d) Where the order has been passed by CCI& E/Addl.CCI & E, the first appeal shall lie with the Appellate Committee in the Ministry of Commerce. (2) However, the CCI & E, may designate, from time to time, appellate authorities for deciding specific types of cases. (3) Notwithstanding the provisions contained in the sub-para (1) above, the appellant shall be allowed not more than two stages of appeal. (4) The appeal made under the provisions of the Act and the order (s) made thereunder should be accompanied by a proforma giving the following information:- (a) Authority against whose decision appeal is preferred; (b)A copy of the order appealed against; (c) Whether the appeal is against debarment or suspension from receiving Kambli 12 wp1482.91 licences (in the case of debarment, the periods for which appellant has been debarred from obtaining licences may also be indicated); and (d) The grounds of appeal (in brief). (5)A copy of the appeal should invariably be sent by the appellant to the authority against whose decision the appeal is made. (emphasis supplied) 12. Perusal of the above quoted paragraph 139 shows that in exercise of its power under sub-cause (2) of Order 10 the Government issued notification dated 27-3-1985 providing therein that if the order of debarment has been made by the Joint Chief Controller of Imports & Exports, first appeal will lie to the Chief Controller of Imports & Exports or the Additional Chief Controller of Imports & Exports and the second appeal shall lie to the Appellate Authority in the Government. 13. It is thus clear that the powers of the Chief Controller and the Additional Chief Controller of entertaining the appeal against the order of the Joint Chief controller are concurrent. Perusal of the Memorandum of Appeal that is Kambli 13 wp1482.91 filed by the Chief Controller before the Central Government shows that that appeal has been filed under Section 4M of the Act. In paragraph 2 of the letter which accompanies the Memorandum of Appeal, the Chief Controller states “After careful and detailed consideration of the order in appeal of the Additional Chief Controller of Imports & Exports and being aggrieved by the said decision I am filing the present appeal under Section 4M of the Imports & Exports (Control) Act, 1947 (As Amended).” Thus, admittedly, appeal has been filed under section 4M of the Act. Section 4M of the Act reads as under: 4M Appeal- (1) Any person aggrieved by any decision or order made under this Act may prefer an appeal:- (a) where the decision or order has been made by the Chief Controller or Additional Chief Controller to the Central Government; (b) where the decision or order has been made by any officer below the rank of the Additional Chief controller to the Chief Controller or where he so directs, to the Additional Chief Controller, within a period of forty-five days from the date on which the order is served on such person: Kambli 14 wp1482.91 14. Perusal of the above quoted provision shows that it provides for an appeal by any person aggrieved by any decision or order made under the Act. Imports (Control) Order, 1955 has been framed by the Central Government under the Act. Therefore, any order made under the Imports (Control) Order would be an order made under the Act, and therefore, appeal can be filed under the provisions of Section 4M of the Act against any order that may be made under the Imports (Control) Order. The question is whether the Chief Controller of Imports & Exports can file appeal against the order of the Additional Chief Controller of Imports & Exports under the provisions of Section 4M of the Act. 15. Perusal of clause 10(2) of the Imports Control Order, which we have quoted above shows that power to hear appeal is concurrently conferred on the Chief Controller of Imports & Exports and Additional Chief Controller of Imports & Exports. But perusal of Section 4M(1)(b), quoted above, shows that the power to hear an appeal against an order made by the sub-ordinate officer is conferred only on Kambli 15 wp1482.91 the Chief Controller of Imports & Exports and it is only when the Chief Controller of Imports & Exports so decides or directs an appeal can be heard by the Additional Chief Controller of Imports & Exports. Thus, power to hear appeal is to be delegated by the Chief Controller of Imports & Exports to the Additional Chief Controller of Imports & Exports. Perusal of Clause 139 and Notification dated 27-3-1985 shows that the Chief Controller of Imports & Exports has also been given power to designate appellate authority for deciding the appeals. The provisions of Notification dated 27-3-1985 is in consonance with the provisions of Section 4M. It is, thus, clear to our mind that when the Additional Chief Controller of Imports & Exports decides the appeal, he acts as a delegate of the Chief Controller of Imports & Exports. 16. The Petitioners had filed the appeal against the order of the Joint Chief Controller. That Appeal was decided by the Additional Chief Controller. The Chief Controller has filed the appeal against that order before the Central Kambli 16 wp1482.91 Government. The contention of the Petitioners is that the Chief Controller cannot file an appeal against the order passed by the Additional Chief Controller under Section 4M of the Act. The learned Counsel appearing for the Petitioners relied on the judgment of the Supreme Court in the case of Mohd.Sharfuddin, referred to above. It was submitted by the learned Counsel that an appeal under Section 4M can be filed only by “any person aggrieved” and that the Chief Controller cannot be said to be a person aggrieved by the order passed by the Additional Chief Controller. Perusal of the judgment of the Supreme Court in the case of Mohd. Shrfuddin shows that the first question that the Supreme Court was considering in that judgment was “No appeal lay to the Custodian from the orer of the Assistant Custodian, Giridih,, at the instance of the Assistant Custodian, Head quarters, Patna”. In paragraph 6 of that judgment the Supreme Court considers what does the term “any person”” aggrieved under Section 25 of the Act mean. The Supreme Court observes thus in paragraph 6: Kambli 17 wp1482.91 6. Learned counsel for the respondents contends that the words “any person aggrieved” in S.25 of the Act are comprehensive enough to include a Custodian and therefore, a Custodian can prefer an appeal against an order of a Custodian releasing properties under S.7 of the Act. Realizing that an obvious anomaly is implicit in the argument, learned counsel concedes that an appeal can be filed only by a Custodian other than the Custodian who made the order releasing the properties. It is said that the Central Government may, under S.6 of the Act, provide for the distribution of work among the various Custodians, namely, Additional, Deputy and Assistant Custodians, andin such allocation the power to inquire whether aproperty is an evacuee property or not may be conferred on one Custodian and the power to manage it on another, and that, in that event, the Custodian on whom the power to manage is conferred will be a person aggrieved within the meaning of S.24 of the Act. In our view this argument is not consistent with the scheme of the Act. Though for the purpose of convenience of management or judicial determination of disputes the Act provides different categories of Custodian, all of them fall within the definition of “Custodian” in the Act. The Act further provides a hierarchy of tribunals under the superintendence and control of the Custodian- General. It would be anomalous were it to be held that a Custodian could prefer an appeal against the order of a Custodian. The Act does not contemplate one officer preferring appeals against the orders of another officer. If an Assistant Custodian or a Custodian went wrong in the matter of declaring a property to be an evacuee property, the Act provides that the Custodian or the Custodian-General, as the case may be, before 1956, and the Custodian-General thereafter, may set right the wrong. In the Kambli 18 wp1482.91 premises the words “any person aggrieved in S.24 of the Act can only mean a person whose properties have been declared to be evacuee properties by the Custodian, or a person who moved the Custodian to get the properties so declared or any other such aggrieved person. The words any person aggrieved in the context of the Act can not include any Custodian as defined in the Act. 17. Following observations found in paragraph 7 of that judgment, in our opinion, are relevant. They read as under: 7............Where a statute or rules framed thereunder provide for a dispute between two parties to be decided by a tribunal, it is implicit in that provision that the defeated party is one aggrieved by that decision. But the same cannot be said of a Custodian and the party in whose favour he gave a decision; not can another subordinate officer of the Custodian, who made the decision and who has no statutory duty to appear before the Custodian to put forward the case of the department or lead evidence in support thereof, be equated to a party in a lis. We therefore, hold having regard to the scheme of the Act, that the Assistant Custodian headquarters, Patna is not a person aggrieved within the meaning of S.24of the Act. The appeal to the Custodian, therefore, was not competent. 18. The learned Counsel for the Petitioners also Kambli 19 wp1482.91 pointed out to us the provisions in different Acts made for filing appeals by the Department against the order of the Departmental Authority. We find in those enactments special provisions have been made for preferring appeals by the Departmental Authority against the determination or decision made by an authority in the department itself. Perusal of the provisions of Section 4M as also the Import (Control) Order shows that power to decide an appeal is delegated by the Chief Controller to the Additional Chief Controller. Thus, the appeal is decided by the Additional Chief Controller as the delegate of the Chief Controller and therefore, the order made by the Additional Chief Controller in disposing of the appeal would virtually be an order made by the Chief Controller himself. The Supreme Court in its judgment in Mohd. Sharfuddin, (supra) has held that an authority which had made the order cannot prefer an appeal against its own order. So far as the proposition that when the principal delegates authority and in exercise of that authority, the delegate makes an order, the principal becomes functus officio and that the order made by the delegate is to be Kambli 20 wp1482.91 treated as the order made by the principal himself is a well established position. The entire law in this regard has been considered by the Supreme Court in its judgment in the case of Ishwar Singh v/s. State of Rajasthan and ors, AIR 2005 SC 773. Following observations of the Supreme Court, in our opinion, are relevant: 8. It is an accepted position in law that to 'delegate' to another is not to denude yourself. As was observed by Wills, J. in Huth v. Clarke (25 Q.B.D. 391, "In my opinion the word, in its general sense and as generally used, does not imply, or point to, a giving up of authority, but rather the conferring of authority upon someone else". As observed by Lord Coleridge, C.J. in 25 Q.B.D. 304, the word 'delegation' implies that powers are committed to another person or body which are as a rule, always subject to resumption by the power delegating. The person delegating does not denude himself. (Per Wharton's Law Lexicon, 1976 Reprint Ed. at page 316). Delegation implies also the power to withdraw delegation. As indicated in Wharton's Law Lexicon, delegation is a sending away; a putting into commission; the assignment of a debt to another; the entrusting another with a general power to act for the good of those who depute him. The word 'delegate' means little more than an agent. An agent exercises no power of his own but only the powers of his principal. The observation in Huth's case (supra) was referred to in Roop Chand's case (supra). In general, a delegation of power does not imply parting with authority. The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except in so far as it may already have become bound by an act of its delegate. (See Battelley v. Finsbury Borough Council (1958 LGR 165). Kambli 21 wp1482.91 9. In Corpus Juris Secondum, Volume 26, 'delegate' has been described as follows: "As a noun, a person sent and empowered to act for another, one deputed to represent another in a more popular but less accurate sense, a regularly