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TMI Blog2009 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 13-3-2003 (P.1) has attained finality and the proceedings initiated against the petitioner on 18-2-2003 have culminated in a finding that the petitioner did not contravene any provisions of the FEMA then in the absence of any order of the Appellate Authority under section 17 of the FEMA for setting aside the order dated 13-3-2003, the initiation of fresh proceedings on 28-7-2006 were wholly unwarranted. Appeal allowed. - CWP NO. 21532 OF 2008 - - - Dated:- 4-3-2009 - M.M. KUMAR AND H.S. BHALLA, JJ. Jagmohan Bansal for the Petitioner. Ms. Anjali Kukar for the Respondent. JUDGMENT M.M. Kumar, J. - The instant petition filed under article 226 of the Constitution prays for quashing order dated 17-11-2008 (P.8) passed by the Deputy Director of Enforcement and the corrigendum dated 2-12-2008 (P.9) issued by her. The petitioner has been found guilty of charge under section 6(3)( i ) of the Foreign Exchange Management Act, 1999 (for brevity the FEMA ) read with Regulation 4 of the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulation 2000 (for brevity the FEMA Regulations ). After declaring him guilty in purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no violation of section 31 of the Foreign Exchange Regulation Act, 1973 (for brevity the FERA ), which was repealed in the year 2000. He has also pleaded that FEMA came into effect from 1-5-2000 and since the petitioner had purchased the plot in question on 5-11-1999 therefore there was no violation of FERA and no action could be initiated for violation of any provision of FERA on account of section 49 of FEMA. The matter was fixed for hearing on 16-7-2008. The petitioner has asserted that without discussing the question of applicability of FEMA and the question of limitation the Deputy Director has pronounced the petitioner guilty of contravening section 6(3)( i ) of FEMA read with Regulation 4 of the FEMA Regulations. The petitioner was declared guilty of the charges and penalty of rupees five lakhs has been imposed. 4. In the written statement filed by the respondents, the respondents have raised a preliminary objection that an alternative remedy of appeal under section 17 of the FEMA is available to the petitioner. The other broad facts have however been admitted. It has been clarified that a reference was received from the Reserve Bank of India on 26-6-2003. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations which have been enforced from 1-6-2000. 7. His second submission is that after completing investigation on 13-3-2003 a letter was issued to the petitioner confirming that there was no violation of the FEMA. The aforesaid order has attained finality as no appeal was filed. Learned counsel has argued that the adjudication proceedings could not be initiated in the year 2006 after the expiry of three years from the date of conclusion of earlier proceedings. Even on merits, learned counsel has submitted that according to the letter dated 22-9-2005 sent by the District Town Planner, Ludhiana to Addl. District Magistrate (G), Ludhiana the plot in question fell in industrial zone as per the revised site plan. 8. Ms. Anjali Kukar, learned counsel for the respondent has argued that section 31 of the FERA merely imposed similar restrictions on a non citizen and the petitioner had become foreign national as per his own showing from June, 2000. Learned counsel has maintained that the petitioner can avail the remedy of appeal. 9. Having heard learned counsel for the parties, we are of the considered view that the issue raised in the instant petition is whether an act which cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase price, if any, shall be made out of ( i ) funds received in India through normal banking channels by way of inward remittance from any place outside India, or ( ii ) funds held in any non-resident account maintained in accordance with the provisions of the Act and the regulations made by the Reserve Bank : Provided further that no payment of purchase price for acquisition of immovable property shall be made either by traveller s cheque or by foreign currency notes or by other mode other than those specifically permitted by this clause. ( b )transfer any immovable property in India to a person resident in India, and ( c )transfer any immovable property other than agricultural or plantation property or farm house to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India. 4. Acquisition and transfer of property in India by a person of Indian origin. A person of Indian origin resident outside India may - ( a )acquire immovable property in India other than an agricultural property, plantation, or a farm house : Provided that in case of acquisition of immovable property, payment of purchase price, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31 of the FERA persons other than citizen of India were prohibited from acquiring, holding or transferring or dispose of by sale etc. any immovable property other than agricultural land. Thus the provision did not apply to the citizens of India like the petitioner. The provisions of the FEMA Regulations were made applicable from 1-6-2000 and thus would not apply to the transaction dated 5-11-1999. Under section 31 of the FERA there is no limitation on the purchase of even agricultural land by the Indian Citizen which was the provision applicable at that time. Therefore, the action of the respondents concerning imposition of penalty under section 13(1) of the FEMA, adjudication and framing of charge thereunder are patently against article 20(1) of the Constitution. 12. We are further of the view that once order dated 13-3-2003 (P.1) has attained finality and the proceedings initiated against the petitioner on 18-2-2003 have culminated in a finding that the petitioner did not contravene any provisions of the FEMA then in the absence of any order of the Appellate Authority under section 17 of the FEMA for setting aside the order dated 13-3-2003, the initiation of fresh procee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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