Dabhol Pawer Co. Vs Union of India and Ors.

207-wp-2343-07.doc

Digitally signed by 1 / 5 MEERA MEERA MAHESH MAHESH JADHAV JADHAV Date: 2022.08.0115:01:17 IN THE HIGH COURT OF JUDICATURE AT BOMBAY +0530 ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2343 OF 2007

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Dabhol Power Company….Petitioner

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 V/s.

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Union of India & Ors.…Respondents

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----

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Mr. Rohan Sathaye a/w Mr. Guru Shanmugam i/b M & M Legal Ventures for
Petitioner

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Mr. Parag A Vyas a/w Ms Karuna Yadav for Respondent Nos.1 to 4

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 ----

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 CORAM : K.R. SHRIRAM &
A.S. DOCTOR, JJ

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 DATED : 28th JULY 2022

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P.C. :

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1 Paragraph 23 of the impugned order dated 21^st August 2007 reads as

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under:

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“23. For the reasons stated hereinabove, these appeals are
dismissed on the grounds of limitation because these appeals
are preferred after an inordinate delay of more than 90 days
which cannot be condoned under the Section 52(2) Foreign
Exchange Regulation Act, 1973.”

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2 Apex Court in Thirumalai Chemicals Ltd. Vs. Union of India & Ors.1

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after holding that a limitation provision is procedural, held that irrespective
of the fact that the adjudicating officer had passed the orders with reference

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to the violation of the provisions of FERA, as the appeal against such order

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was to the Appellate Tribunal constituted under FEMA, necessarily Section

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1 . (2011) 6 Supreme Court Cases 739

Meera Jadhav

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19(2) of FEMA alone will apply and it is not possible to import the
provisions of Section 52(2) of FERA. The Appellate Board stood dissolved
and ceased to function when FEMA was enacted. Apex Court held that
Section 52(2) can apply only to an appeal to the Appellate Board and not to
any Appellate Tribunal. Paragraphs 42 to 49 of Thirumalai Chemicals Ltd.
(Supra) read as under:

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“42. The appellate Board under FERA, it may be noted stood
dissolved and ceased to function when FEMA was enacted.
Therefore, any appeal against the order of the adjudicating
officer made under FERA, after FEMA came into force, had to
be filed before the Appellate Tribunal constituted under
FEMA and not to the Appellate Board under FERA. Section
52 of FERA stipulates the limitation for an appeal against the
orders of the adjudicating officer to the Appellate Board. It
provides the period of limitation as 45 days but the Board
may entertain an appeal after the expiry of 45 days but not
beyond 90 days.

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43. Under FEMA, an appeal lies to the appellate tribunal
constituted under that Act and Section 19(2) provides that
every appeal shall be filed within 45 days from the date on
which a copy of the order of the adjudicating authority is
received. The appellate is however empowered to entertain
appeals filed after the expiry of 45 days if it is satisfied that
there was sufficient cause for the delay in filing the appeal.

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44. Though both Section 52(2) of FERA and Section 19(2) of
FEMA provide a limitation of 45 days and also give the
discretion to the appellate authority to entertain an appeal
after the expiry of 45 days, if the appellant was prevented by
sufficient cause from filing an appeal in time, the appellate
authority under FERA could not condone the delay beyond
45 days whereas under FEMA, if the sufficient cause is made
out, the delay can be condoned without any limit.

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45. The question we have already pointed out is whether
Section 52(2) of FERA or Section 19(2) of FEMA will govern
the appeal. As noticed above, any provision relating to
limitation is always regarded as procedural and in the
absence of any provision to the contrary, the law in force on
the date of the institution of the appeal, irrespective of the
date of accrual of the cause of action for the original order,
will govern the period of limitation. 26. Section 52(2) can
apply only to an appeal to the appellate Board and not to any
appellate tribunal. Therefore, irrespective of the fact that the
adjudicating officer had passed the orders with reference to
the violation of the provisions of FERA, as the appeal against

Meera Jadhav

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such order was to the appellate tribunal constituted under
FEMA, necessarily Section 19(2) of FEMA alone will apply
and it is not possible to import the provisions of Section
52(2) of FERA.

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46. As we are not concerned with the appeals to Appellate
Board, but appeals to the Appellate Tribunal, limitation being
a matter of procedure, only that law that is applicable at the
time of filing the appeal, would apply. Therefore, Section
19(2) of FEMA and not Section 52(2) of FERA will apply. As
noticed above, under Section 19(2), there is no ceiling in
regard to the period of delay that could be condoned by the
appellate tribunal. If sufficient cause is made out, delay
beyond 45 days can also be condoned. The tribunal and the
High Court misdirected themselves in assuming that the
period of limitation was governed by Section 52(2) of FERA.

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47. We have already indicated that clause (b) of sub-section
(5) of Section 49 refers to appeal preferred and pending
before the Appellate Board under FERA at the time of repeal.
The said clause does not specifically refer to appeals
preferred against adjudication orders passed under FEMA
with reference to causes of action which arose under FERA.
We have already noticed the right of appeal under FEMA has
already been saved in respect of cause of action which arose
under FERA however subject to the proviso to sub- section
(2) of Section 19, in the case of belated appeals.

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48. The above discussion will clearly demonstrate that
Section 49 of FEMA does not seek to withdraw or take away
the vested right of appeal in cases where proceedings were
initiated prior to repeal of FERA on 01.06.2000 or after. On a
combined reading of Section 49 of FEMA and Section 6 of
General Clauses Act, it is clear that the procedure prescribed
by FEMA only would be applicable in respect of an appeal
filed under FEMA though cause of action arose under FERA.
In fact, the time limit prescribed under FERA was taken away
under the proviso to sub-section (2) of Section 19 and the
Tribunal has been conferred with wide powers to condone
delay if the appeal is not filed within forty-five days
prescribed, provided sufficient cause is shown. Therefore, the
findings rendered by the Tribunal as well as the High Court
that the Tribunal does not have jurisdiction to condone the
delay beyond the date prescribed under FERA is not a correct
understanding of the law on the subject.

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49. We, therefore, hold that the Appellate Tribunal can
entertain the appeal after the prescribed period of 45 days if
it is satisfied, that there was sufficient cause for not filing the
appeal within the said period. We are therefore inclined to
set aside the orders passed by the Tribunal and the High
Court and remit the matter back to the Tribunal for fresh
consideration in accordance with law on the basis of the
findings recorded by us. We order accordingly.”

Meera Jadhav

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 3In the circumstances, impugned order dated 21st August 2007 is
hereby quashed and set aside. The matter is remanded to the Appellate
Tribunal, constituted under FEMA to consider petitioner’s application for
condonation of delay and if the delay is condoned, then to dispose the
appeal on merits.

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4At this stage, Mr. Sathaye submitted that there is no member, who is
appointed by the Government in the Tribunal and states that even the Apex
Court in Special Leave Petition No.7551 of 2002 in its order dated 19th July
2022, had expressed disappointment in Government not constituting the
Tribunal. We do not wish to get into that issue but at the same time, it is
fair that no coercive steps shall be taken against petitioner until the Tribunal
is constituted / members to the Tribunal are appointed and petitioner’s
appeal which is remanded now, is taken up for consideration. Therefore,
interim relief that was granted by order dated 27th March 2008 would
continue until petitioner’s application for condonation of delay is taken up
for consideration. Interim relief granted on 27th March 2008 reads as
under:

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“(e) that pending the hearing and final disposal of this
petition, the respondents, their agents, servants and
subordinates be restrained by an order of injunction of this
Hon’ble Court from taking any action in furtherance or
pursuance of the impugned orders dated 20th April 2005 and
29th April 2005 (Exhibits K and L hereto) and the impugned
Demand Notice dated 8th March 2006 (Exhibit G hereto).”

Meera Jadhav

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5 We hasten to add we have not expressed any opinion on the merits of

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the matter.

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6 Petition disposed with no order as to costs.

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(A. S. DOCTOR, J.)

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(K.R. SHRIRAM, J.)

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Meera Jadhav

Dabhol Pawer Co. v. Union of India and Ors.

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Dabhol Pawer Co. v. Union of India and Ors.

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