Union of India (Uoi) Vs. Nandalal Kushwaha and ors. - Court Judgment

Excerpt:
- d.k. seth, j.background:1. an 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 by reason of section 49 of 1999 act, the 1973 act stood repealed and the board constituted under section 52(1) of the 1973 act stood dissolved.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 v. 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:4. we must appreciate the captivating arguments made by mr. banerjee and mr. mukherjee for and against the contentions raised by them. mr. mukherjee supports the decision of the other division bench presided over by hon'ble m.h.s. ansari and hon'ble soumitra pal, jj. in smp exports (p) ltd. (supra). according to him, the application of section 5 of the limitation act is expressly excluded by the provisions contained in section 35 of the 1999 act. we have the privilege of going through the said decision and note the erudite reasoning given therein. however, very humbly we beg to differ with the ultimate conclusion drawn in the said decision on the question raised before us. with due respect, we have not been able to persuade us to agree with the view taken for the reasons following.section 29(2), limitation act: applicability : scope & extent:5. section 29(2) of the limitation act provides that the application of the limitation act in respect of appeal or application can be circumscribed through statutory enactment of special or local law. application of section 3 of the limitation act would be deemed to be as prescribed in such special or local law. sections 4 to 24 (inclusive) in such cases shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law. the provisions of section 29(2) of the limitation act applied to (a) cases otherwise coming under the first schedule of the limitation act where a different period is prescribed in the special or local law in question and to (b) cases which do not come within the first schedule but for which periods of limitation have been prescribed by the special or local law; but it did not apply to cases (i) where the special or local law is silent on the point of limitation and (ii) where the special or local law prescribes the same period as the first schedule of the limitation act, either expressly or by necessary implication. if the special or local law contains nothing on the period of limitation except by way of reference to the limitation act, in such a case the special or local law may well be said to be silent or as prescribing the same period of limitation by implication. we may find support for such a view in harendra v. state of west bengal, 1963(67) cwn 953 by this court. the apex court in vidyacharan v. khub chand, : [1964]6scr129 while interpreting sub-section (2) of section 29 of the limitation act had held that sub-section (2) is to be read as a whole and it would mean if special period of limitation is prescribed to exclude the application of the limitation act to the extent to which they are expressly excluded or in other words it would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.appeals to high court under 1973 act : section 5, limitation act: applicability:6. the 1973 act prescribed such a period of limitation for an appeal under section 54 of the 1973 act being 60 days from the date of communication of the decision or the order passed by the appellate board. the proviso prescribing such provision for limitation for an appeal to the high court under section 54 had by necessary implication in clear and express terms included the application of section 5 of the limitation act. inasmuch as proviso to section 54 provided that the high court would not entertain an appeal filed after the expiry of 60 days from communication of the order or decision of the appellate board unless satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. therefore, the special law being the 1973 act had provided for special limitation of 60 days but did not exclude application of section 5 of the limitation act in clear and unequivocal terms expressed in the statute itself.the 1973 act vis-a-vis 1999 act: section 5 : applicability : scope & extent: a comparison:7. this 1973 act has since been repealed by the 1999 act, which had come into force with effect from 1st of june, 2000. now under the 1999 act the provision for appeal provided in section 35 of that act provides for limitation of 60 days from the date of communication of the decision or order of the appellate tribunal. whereas the proviso thereto provides that the high court may, if satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow the appeal to be filed within a further period not exceeding 60 days. this proviso attracts the principle of section 29 sub-section (2) with regard to the application of section 5 of the limitation act. inasmuch as section 5 of the limitation act would apply only to the extent of 60 days after the expiry of the initial 60 days. the unlimited application of section 5 as provided in the limitation act has since been expressly excluded by the proviso to section 35 of the 1999 act. in other words, the benefit of section 5 of the limitation act is confined only to the extent of 60 days expressly provided in the proviso to section 35 and shall confine within the said limit and not beyond.7.1. relying on this express provision restricting the application of section 5 of the limitation act only to the extent of 60 days expressly provided in the proviso to section 35, mr. mukherjee contended that by express provision it had excluded the application of section 5 of the limitation act beyond the said period. therefore, this present appeal preferred after 120 days cannot be maintained.7.2. the question does not seem to be so easy as has been pointed out by mr. mukherjee. on the other hand, in the scheme of the 1999 act, there is no indication that the period of limitation as provided in the proviso to section 35 of the 1999 act was intended to be given restrictive operation. section 1 sub-section (4) clearly indicates that the act shall come into force on such date as the central government may, by notification in the official gazette, appoint. by a notification no. gsr-371(e) dated 1st may, 2000, the central government had appointed 1st of june, 2000 as the date when the 1999 act came into force. proviso to sub-section (4) of section 1 of the 1999 act prescribes for different appointed date for different provisions to be construed as reference to the coming into force of that provision. thus the legislature had clearly intended that the application of the 1999 act would be prospective and not retrospective.7.3. the 1999 act has replaced the 1973 act altogether. we may refer to section 49 sub-section (1) of the 1999 act whereby the 1973 act was repealed. the said provision while repealing the act had also the effect of dissolving the appellate board constituted under section 52(1) of the 1973 act. we may now examine the effect of the repeal from the clear and express provision contained in section 49 of the 1999 act.7.4. in order to appreciate the distinction between the two provisions, we may compare the text of section 54 of the 1973 act and section 35 of the 1999 act as follows :section 54 of the 1973 act section 35 of the 1999 actappeal to high court.- an appeal appeal to high court- any personshall lie to the high court only aggrieved by any decision or orderon of questions of law from any of the appellate tribunal may file decision or order of the appel- an appeal to the high court within late board under sub-section sixty days from the date of commun-(3) or sub-section (4) of ication of the decision or order ofsection 52 : the appellate tribunal to him on any question of law arising out of such order :provided that the high court provided that the high court may,shall not entertain any appeal under if it is satisfied that the appellantthis section if it is filed after the was prevented by sufficient causeexpiry of sixty days of the date of from filing the appeal within thecommunication of the decision or order said period, allow it to be filed of the appellate board, unless the within a further period not exceedinghigh court is satisfied that the sixty days.appellant was prevented by sufficientcause from filing the appeal in time.*** *** *** *** *** ***7.5. in order to appreciate the situation, we may quote beneficially the provisions of section 49 of the 1999 act so far as is relevant for our present purpose :'49. repeal and saving. - (1) the foreign exchange regulation act, 1973 (46 of 1973) is hereby repealed and the appellate board constituted under sub-section (1) of section 52 of the said act (hereinafter referred to as the repealed act) shall stand dissolved. *** *** *** ***(5) notwithstanding such repeal, -(a) *** *** ***(b) any appeal preferred to the appellate board under sub-section (2) of section 52 of the repealed act but not disposed of before the commencement of this act shall stand transferred to and shall be disposed of by the appellate tribunal constituted under this act;(c) every appeal from any decision or order of the appellate board under sub-section (3) or sub-section (4) of section 52 of the repealed act shall, if not filed before the commencement of this act, be filed before the high court within a period of sixty days of such commencement:provided that the high court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period.(6) save as otherwise provided in sub-section (3), the mention of particular matters in sub-sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the general clauses act, 1897 (10 of 1897), with regard to the effect of repeal.'7.6. sub-section (5) in clause (b) provides that an appeal pending before the board under the 1973 act but not disposed of before the commencement of the 1999 act shall stand transferred to and shall be disposed of by the appellate tribunal constituted under the 1999 act; and clause (c) every appeal from any decision or order of the appellate board under sub-section (3) or sub-section (4) of section 52 of the repealed act shall, if not filed before the commencement of this act be filed before the high court within the period of 60 days of such commencement provided that the high court may entertain such appeal after the expiry of the said period of 60 days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period.7.7. the above provision clearly indicates that an appeal pending before the appellate board on the constitution of the tribunal shall stand transferred and be disposed of by the tribunal. an appeal, which has not been preferred before the commencement of the 1999 act can be preferred before the high court within 60 days of such commencement. the expression being clear, it gives 60 days from commencement to prefer the appeal irrespective of the fact as to whether the appeal was barred by limitation on the commencement. it is a special limitation provided for cases where the decision of the appellate board was given prior to the commencement of the 1999 act. in respect of such appeal through express provision provided in the proviso, provision of section 5 of the limitation act was made applicable. however, sub-section (5) does not prescribe any provision in respect of an appeal pending before the appellate board since transferred to the tribunal on the commencement of the 1999 act and disposed of thereafter. thus, it could be said that since the repealing act is silent about the period of limitation of such appeals pending on the date of commencement before the appellate board since transferred to the tribunal upon its constitution and decided after the commencement of the act, as such it would be governed by the provisions contained in section 35 of the 1999 act. apparently the question seems to be so simple, attracting the application of section 29(2). inasmuch as it appears that the repealing provision being silent and the preference of an appeal being a procedural matter, the provisions of section 35 of the 1999 act would apply in full force to such an appeal. but this proposition seems to be fallacious for twofold reasons as discussed hereafter.right of appeal: section 6, general clauses act: effect:8. the first reason is section 6 of the general clauses act, 1897. when the repealing act does not provide specifically to the contrary to exclude section 6 of the general clauses act, the provisions of section 6 of that act would apply in full force. under section 6 of the general clauses act unless a different intention appears, the repeal shall not '(c) effect any right, privilege, obligation or liability, acquired, accrued or incurred under any enactment so repealed; or.....and any such.....legal proceeding or remedy may be instituted, continued or enforced,..... as if the repealing act.....had not been passed'. the right of appeal is a substantive right accrued under the 1973 act as soon the initial proceeding was initiated. therefore, in the absence of any express intention available in the repealing act, the right of appeal accrued on the date of initiation of a proceeding shall remain unaffected. section 35 of the repealing act would not eclipse the right of appeal, which would be governed under the repealed act as if the 1999 act has not been enacted. the second reason is that the repealing act itself had expressed its clear intention in section 49(6) that notwithstanding the repeal, section 6 of the general clauses act will apply in full force. inasmuch as under sub-section (6), unless otherwise provided the repealing provision would not prejudice or affect the general application of section 6 of the general clauses act, 1897, with regard to the effect of repeal. thus by express provision contained in sub-section (6) of section 49 of the 1999 act, the effect of section 6(c) of the general clauses act remains unaffected and applicable in fall force.8.1. section 6 of the general clauses act, as mentioned above, has the effect of discontinuance of the pending proceeding and initiation of fresh proceeding where a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings. there can be cases where reasonable inference can be drawn that the intention of the legislature was otherwise, kolhapur canesugar works ltd. v. union of india, : 2000(119)elt257(sc) . but in this case by reason of section 49 sub-section (5)(b) the pending appeal was allowed to continue and, therefore, the proceeding/appeal before the appellate board was saved by the saving clause in section 49 and any intention of the legislature contrary to the continuation of the proceeding cannot be reasonably inferred from saving clause, particularly, in view of sub-section (6) thereof. normally section 6 of the general clause act comes into play and enables the continuation of the proceedings as if the repealing act had not been passed unless a different intention appears in the repealing act, nar bahadur bhandari v. state of sikkim, air 1998 sc 2293 at p. 2305. in the absence of any intention to the contrary indicated in the repealing act, section 6 of the general clauses act will apply with full vigour on the principle that whenever there is a repeal of any enactment, the consequences would follow except in cases where in the saving clause of the repealing enactment anything is specially provided or any other intention is expressed therein. however, in the case of a simple repeal, there is hardly any room for the expression of a contrary view, p.e.k. kalliani amma v. k. devi, : air1996sc1963 . if there is a specific provision and intention is clearly inconsistent with the provision of section 6 in the general clauses act and such inconsistency is clearly manifested then the new act would apply and the old act would not, varun sea on ltd. v. bharat bijlee ltd., : air1998guj99 ). i had also occasion to deal with these question with regard to applicability of section 6 of the general clauses act in sabitri devi and ors. v. state of west bengal and ors., 2002(4) icc 527 : 2002(3) chn 108 wherein the principle of section 6 was also attracted to a temporary act.right of appeal: substantive right: determined on the initiation:9. admittedly, an appeal is a continuation of the proceeding. the right to appeal is determined on the date when the initial proceeding is initiated. in the present case, the initial proceeding was initiated under the provision of the 1973 act. the appeal was preferred under section 52 of the 1973 act. the appeal was pending at the commencement of the 1999 act. therefore, by reason of the repeal and saving, the appeal stood transferred to the tribunal. the appeal being a statutory right and a substantive one, the right is determined as soon the proceeding is instituted. the right cannot be impaired by imposing onerous condition by subsequent amendment, though such condition imposed through law, which may be procedural in nature. a substantive right cannot be affected by procedural amendment. if such right is impaired and if any onerous condition is imposed making the right of appeal onerous than that which was available under the law as on the date of institution of the suit or proceeding, then it will affect the substantive right of the party. such right cannot be taken away by way of repeal of the act under which the right had accrued unless express intention to the contrary is provided in the repealing act. then section 6 of the general clauses act would come into play. we had taken such a view in kamal sukla v. krishna roy, 2004 (17) aic 942 (cal, hc) : 2004 (1) clj 56 : 2004 (1) chn 359 : 2004 (1) icc 520 : 2004 (1) wblr 223. we had occasion in that decision to rely upon the decision in state of bombay v. supreme general films exchange ltd. and arati cotton mills ltd., : [1960]3scr640 in which the apex court had held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.conclusion:10. in the present case, we do not think that any such intendment has been expressed in the repealing act by the legislature. on the other hand, the legislature saved the application of section 6 of the general clauses act, which saves the right of appeal as accrued by reason of section 54 of the 1973 act to the appellant as soon the proceeding was intended. that apart, in respect of appeals, which were not filed under section 54 to the high court before the commencement were allowed to be filed within 60 days after commencement of the 1999 act, attracting the application of section 5 of the limitation act without any restriction. there cannot be a distinction between an appeal disposed of by the appellate board before the commencement and an appeal pending on the commencement and transferred to the appellate tribunal. inasmuch as both these appeals emanated from the provisions of the 1973 act. when unrestricted section 5 is made applicable to appeals not filed before the commencement but filed after the commencement, a different rule cannot be applied to an appeal pending before the appellate board and decided by the appellate tribunal on transfer after the commencement. in both these cases or situations the right of appeal accrued on the initiation of the proceeding under section 1973 act as it then stood which remains unaffected by reason of section 6(c) of the general clauses act, the application whereof has since expressly saved by sub-section (6) of section 49 of the 1999 act.10.1. therefore, in this case, the proviso to section 54 of the 1973 act as saved by sub-section (6) of section 49 of the 1999 act shall apply. order:11. thus, for the reason stated above, we are unable to persuade ourselves to agree with the view taken by the other division bench in union of india v. smp exports pvt. ltd., fea no. 7 of 2003 disposed of on 31st march, 2004 by their lordship the hon'ble mr. justice m.h.s. ansari and the hon'ble mr. justice soumitra pal.11.1. in these circumstances, let this matter be placed before hon'ble the acting chief justice for his kind consideration for constitution of a larger bench to decide the issue.r.n. sinha, j.11.2. i agree.