Joint Director, Directorate of Enforcement, Govt of India v. Cyberabad Hitech Integrated Township, Development Corporation Private Limited
2018-04-12
K.VIJAYA LAKSHMI, RAMESH RANGANATHAN
body2018
DigiLaw.ai
ORDER : 1. When these matters were listed before the Learned Single Judge on 7-2-2018, Sri S. Niranjan Reddy, learned Senior Counsel, contended that appeals preferred against orders of Tribunals, presided by a retired Judge of the High Court, should be listed before a Division Bench; and, since Civil Miscellaneous Appeal No. 882 of 2013 and batch was heard by a Division Bench of this Court, and an order was passed on 6-10-2015, these matters should also be listed before a Division Bench. As Sri P.S.P. Suresh Kumar, learned counsel for the appellant in both these appeals, contended otherwise, both these matters have been listed before us. Chapter VI of the Prevention of Money-Laundering Act, 2002 (for short "the 2002 Act") relates to the Appellate Tribunal. Section 25 thereof, as substituted by Act 28 of 2016 with effect from 1-6-2016, prescribes that the Appellate Tribunal, constituted under sub-section (1) of Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (13 of 1976), shall be the Appellate Tribunal for hearing appeals against the orders of the Adjudicating Authority and the other authorities under this Act. Section 42 of the 2002 Act provides for an appeal to the High Court and, thereunder, any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law or fact arising out of such order. 2. Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (for short "the 1976 Act") Act relates to the constitution of the Appellate Tribunal and, under sub-section (1) thereof, the Central Government may, by notification in the Official Gazette, constitute an Appellate Tribunal to be called the Appellate Tribunal for Forfeited Property consisting of a Chairmen and such number of other members (being officers of the Central Government not below the rank of a Joint Secretary to the Government) as the Central Government thinks fit, to be appointed by that Government for hearing appeals against the orders made under Section 7, sub-section (1) of Section 9 or Section 10.
Section 12(2) stipulates that the Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of the Supreme Court or of a High Court. 3. The question which necessitates examination is whether an appeal preferred to a High Court, against the order of the Appellate Tribunal constituted in terms of Section 25 of the 2002 Act read with Section 12(1) of the 1976 Act, should be heard by a Single Judge or by a Division Bench of the High Court. 4. Part XIVA of the Constitution of India relates to Tribunals. Article 323-A relates to Administrative Tribunals and Article 323-B relates to Tribunals for other matters. Clause (1) of Article 323-B stipulates that the appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws. Clauses (2)(b) of Article 323-B provides that the matters referred to in clause (1) would include foreign exchange, import and export across customs frontiers. 5. In L. Chandra Kumar v. Union of India ( AIR 1997 SC 1125 ), a Seven-Judge Bench of the Supreme Court observed: "....In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B. to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules.
While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated...." (emphasis supplied) 6. In the light of the law declared by the Supreme Court, in L. Chandra Kumar AIR 1997 SC 1125 (supra), all decisions of the Tribunal, constituted under Articles 323-A and 323-B of the Constitution of India, shall be subjected to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. Consequently, an appeal would only lie to a Division Bench against the order passed by a Tribunal constituted under Article 323-B of the Constitution of India. 7. As noted hereinabove, Article 323-B (2)(b) enables Parliament, by law, to constitute Tribunals for adjudicating disputes, complaints, or offences with respect to matters relating to foreign exchange; and, since the Appellate Tribunal constituted under Section 25 of the 2002 Act, is the very same Tribunal which is constituted under Section 12(1) of the 1976 Act, appeals against orders passed by the Tribunal, under Section 25 of the 2002 Act, shall also be heard by a Division Bench. 8.
8. While Sri P.S.P. Suresh Kumar, learned counsel for the appellant in both the appeals, would submit that the mere fact that the Tribunal constituted under Section 25 of the 2002 Act is the Appellate Tribunal constituted under Section 12(1) of the 1976 Act, would not make such a Tribunal, constituted under Section 25 of the 2002 Act, a Tribunal under Article 323-B of the Constitution of India. 9. While the said submission cannot be easily brushed aside, accepting the submission would mean that, while an appeal to the High Court against an order of the said Tribunal passed under the 1976 Act must be heard by a Division Bench, orders passed by the very same Tribunal under Section 25 of the 2002 Act should be heard by a Single Judge. 10. The legislative intent in constituting the Tribunal, under Section 12(1) of the 1976 Act, to be the Appellate Tribunal under the 2002 Act, when considered in the light of the judgment of the Supreme Court in L. Chandra Kumar AIR 1997 SC 1125 (supra) that appeals there against should only be heard by a Division Bench, is evidently because the Tribunal is headed by a Retired Judge of the Supreme Court or the High Court. 11. We may not be understood to have held that in every case, where a quasi-judicial/Judicial Tribunal is headed by a Retired Judge of the High Court, the matter should be referred only to a Division Bench. All that we have held is that, since the Appellate Authority constituted under Section 25 of the 2002 Act is the very same Tribunal constituted under Section 12(1) of the 1976 Act, which is a Tribunal falling within the ambit of Article 323-B of the Constitution of India, appeals preferred under Section 42 of the 2002 Act, against the order of such an Appellate Tribunal constituted under Section 25 of the said Act, shall be heard by a Division Bench of the High Court. As a first appeal lies to the Appellate Tribunal, under Section 25 of the 2002 Act, the appeal there against, under Section 42 of the said Act, to the High Court is a Second Appeal. All these appeals shall, therefore, be numbered as CMSAs and the scope of enquiry in such CMSAs would, undoubtedly, be in terms of Section 42 of the 2002 Act.
All these appeals shall, therefore, be numbered as CMSAs and the scope of enquiry in such CMSAs would, undoubtedly, be in terms of Section 42 of the 2002 Act. Let both these appeals be listed "for admission" before appropriate Division Bench.