UNION OF INDIA Vs. NANDALAL KUSHWAHA

JUDGEMENT

(1.) In appeal under section 52(2) of the Foreign Exchange Regulation Act, 1973 (1973 Act) was pending before the Board when the Foreign Exchange Management Act, 1999 (1999 Act) came into force. By reason of section 49 of 1999 Act, the 1973 Act stood repealed and the Board constituted under section 52(1) of the 1973 Act stood dissolved. Sub-section (5) clause (b) of section 49 of the 1999 Act provided that such appeal pending before the Board on the constitution of the Tribunal shall stand transferred to and be disposed of by the Appellate Tribunal, so constituted under the 1999 Act. In the present case, the appeal preferred by the respondent before the Board has since been transferred to the Tribunal and this appeal has been preferred to this Court after the expiry of 120 days from the communication of the order passed by the learned Tribunal. Accordingly, an application under section 5 of the Limitation Act has been made. Objection to the applicability of Section 5, Limitation Act:

(2.) Mr. Anjan Mukherjee, learned Senior Counsel, has raised a point that section 5 of the Limitation Act is not applicable in the present case since by reason of section 29(2) of the Limitation Act, its application has been excluded by express provision provided in section 35 of the 1999 Act. Since the 1999 Act has clearly expressed its intention contrary to the provisions contained in section 54 of the 1973 Act, therefore, section 6 of the General Clauses Act would not come in aid of Mr. Banerjee's client, the appellant and sub-section (6) of section 49 shall have no manner of application in the present case. He relied on a decision of the Division Bench of this Court in FEA No. 7 of 2003, Union of India vs. SMP Exports Pvt. Ltd., disposed of on 31st March, 2004 by Their Lordships the Hon'ble Mr. Justice M.H.S. Ansari and the Hon'ble Mr. Justice Soumitra Pal, wherein a view was taken that section 5 of the Limitation Act in such a case would not be applicable. According to him, this decision is binding on this Court. He has also pointed out, relying on section 6 of the General Clauses Act, that in view of sub-section (6) of section 49 of the 1999 Act this appeal would be governed by the limitation provided in section 35 of the 1999 Act which clearly expresses a different intention excluding the application of section 6 of the General Clauses Act, as has been rightly held in the said decision. Support to the applicability of Section 5, Limitation Act:

(3.) Mr. Shibdas Banerjee, learned Senior Counsel, appearing on behalf of the Department-applicant, on the other hand, has contended that the decision cited by Mr. Mukherjee in SMP Exports Pvt. Ltd. (supra) has not correctly laid down the law and it has omitted to consider the implication of sub-sections (3), (4), (5) and (6) of section 49 of the 1999 Act. The decision leaves the provisions contained in section 49 irreconcilable with sub-section (6) thereof. The decision requires to be considered by a larger Bench. He had led us through the provisions of section 6 of the General Clauses Act vis-a-vis section 49 of the 1999 Act and sections 52 and 54 of the 1973 Act. Section 35 of the 1999 Act would be applicable only in respect of cases where the provisions would be governed by the 1999 Act. But a right -of appeal accrues to the parties as soon the proceedings is initiated and a right of appeal is a substantive right which cannot be taken away by subsequent enactment. In case it is a procedural right, as contended by Mr. Mukherjee, in that event, in his usual fairness. Mr. Banerjee has conceded that the judgment of the Division Bench would be held to be correctly decided, but if it is a substantive right, in that event, it cannot be held to have been correctly decided. The right of appeal conferred under section 54 of the 1973 Act is a substantive right, which entitles a person to prefer an appeal within the period limited and beyond that provided he is able to satisfy the Court that he was prevented by sufficient reason from preferring the appeal within the time. This right to get the delay condoned is a substantive right which otherwise accrues by operation of law, namely, the Limitation Act or the limitation provided in the statute. The application of section 29(2) of the Limitation Act can be excluded by express and clear intention used in the legislation. In the present case, in section 35 of the 1999 Act, (according to him he has some reservation), has intended to exclude the application of Limitation Act in terms of section 29(2) of the Limitation Act. However, this question need not be dealt with in this case. On the basis of the question the Court is called upon to decide, it is not necessary to be gone into. The position is made clear by reason of the expression used in sub-sections (3) and (4) read with sub-section (5), clauses (b) and (c) and the proviso and sub-section (6) of section 49 of the 1999 Act. The legislature had never intended to deny the right, which accrued to the appellant under the 1973 Act. Even sub-section (5) clause (c) of section 49 of the 1999 Act while permitting appeal within 60 days from commencement against an order passed by the Tribunal in an appeal under section 52 sub-section (3) or (4) of the 1973 Act, the application of section 5 of the Limitation Act has not been done away with nor the principles of section 29(2) of the Limitation Act has been incorporated. If it is so, in that event, similar benefit cannot be taken away in respect of orders from appeals since been transferred from the Board to the Tribunal, which would create an anomalous situation. Therefore, this is a case for reference to a larger Bench. The decision in SMP Exports (P) Ltd.: Note of disagreement: