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TMI Blog1990 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... n is illegal and contrary to the provisions of the Customs Act and the notifications thereunder. The second prayer, as was submitted at the time of arguments is an alternate prayer in case we hold that the petitioners could not file an appeal under Section 129-A of the Customs Act. We are inclined to hold that the Union of India and M/s. Hindustan Photo Films Manufacturing Co. Ltd. are 'aggrieved persons' and can maintain an appeal under Section 129-A of the Customs Act. We do not propose to pronounce on the merits and legality of importation at this stage. 2. The Customs, Excise and Gold (Control) Appellate Tribunal (for short the Appellate Tribunal) considered various decisions of the High Courts and the Supreme Court and held that the Appellate Tribunal was a creature of law and was, therefore, required to confine itself to the specific provisions of the Customs Act regarding the provisions of appeal. The Appellate Tribunal made a distinction between the original proceedings such as the writ petitions in the High Court and the Supreme Court and the appeal proceedings and held that their powers are not as wide as the High Court and the Supreme Court and that they must confine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of the petitioners is that the principles of locus standi are widely extended by the recent decisions of the Supreme Court keeping in view the public interest. Public interest in the control of foreign trade and indigenous industries are patently obvious in the Customs Act and similar enactments and the duty to enforce the same is cast on the Central Government and its instrumentalities. The words "any person aggrieved" in Section 129-A should be liberally construed in the light of the extended meaning of locus standi in public law. 4. Counsel for the respondent M/s. Northern Plastics Limited has challenged these submissions. He submits that what is crucial in Section 129-A is that a person must be an 'aggrieved' person. As to who is an aggrieved person is clear from Section 129-A(3). That sub-section states that it is the Collector of Customs or the Importer who can alone be said to be aggrieved by the order clearing or non-clearing of the imported goods. A person running a business or an industry generally or a competitor of the importer might feel that their interests are harmed, but they cannot be treated as persons 'aggrieved' within the provisions of the Act. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e words "persons aggrieved" must receive a strict construction in such cases. The Court categorised the applicants for certiorari in three categories, viz. 1) persons aggrieved; 2) strangers; and 3) busybody or meddle-some interlopers. As regards the third category the Court held that they can never be treated as 'aggrieved persons'. There is no difficulty in identifying a 'person aggrieved' in the strict sense of the term. Where a person is in the second category, viz. that of a stranger, the Court has held that they may be 'aggrieved persons' in certain cases. Their efficacy varying according to the statutory context in which the matter falls. 6. In Dabholkar the question raised before the Supreme Court was whether the Bar Council of Maharashtra was an 'aggrieved person' to maintain an appeal under Section 38 of the Advocates Act. The question was answered in affirmative. The Court inter alia held that the Bar Council is vitally concerned with the decision in the context of the functions of the Bar Council. The Bar Council will have a grievance if the decision prejudices the maintenance of standards of professional conduct and ethics. In his separate but concurrent judgment Kri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold. 9. The problem in the present case is not of whether a private citizen or their Association aggrieved by the arbitrary action of the State are to be treated as aggrieved persons or not. The consideration here is a reverse consideration as to whether in an action filed by a private citizen the State or the instrumentality of a State can be treated as an 'aggrieved person' for maintaining an appeal in the appropriate forum. With respect, we hold that the principles of law laid down by the Supreme Court apply with greater vigour in such a case. 10. The Tribunal was in error in distinguishing the said decisions of the Supreme Court. Although right of appeal is a creature of statute the question has to be answered on general principles unless the statute clearly and unmistakably denotes the persons who can file an appeal. That precisely is the difficulty in the present case. The words used in Section 129(a)(l) are "any person aggrieved". The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India we have no such machinery. Therefore, in matters of original remedies and also in the appeal remedies the locus standi of the Government or the instrumentalities of the Government has to be recognised. If in case of private citizen or an Association the locus standi can be conceded if "sufficient interest" is established, in case of government and its instrumentalities where protection of public rights is a primary duty, no difficulty should really arise in the matter of standing in an original proceeding or an appeal. As pointed out by the Supreme Court in S.P. Gupta the areas of public interest are enormously increased now that the State has taken over very large welfare and economic functions. 12. If public interest is a guiding star in deciding as to whether a person is an 'aggrieved person' then the legal position becomes quite obvious if the provision of Sections 11 and 11-A of the Customs Act are taken into account. The Central Government has an absolute right to prohibit/impose if it finds that the importation of certain goods would seriously injure domestic production or would hamper/prejudice the carrying on of foreign trade by the State or the Corporation esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or imposition of penalty who can prefer any appeal to the Appellate Tribunal. This submission is based on the 'communication' of the order and the period of limitation of three months mentioned in the sub-section. If the appeal is to be filed within three months the date of communication is important. The sub-section obliges the communication of the order only to the Collector of Customs and other party. The argument is that there is no communication of the order to the Central Government or its instrumentality and, therefore, the Section does not contemplate an appeal to be filed by any person except the Collector of Customs or the other private party. The next question posed is if the Central Government or its instrumentality can file an appeal under Section 129-A what is the period of limitation within which they should file an appeal? We cannot accept this submission as it is based on erroneous interpretation of sub-section (3) of Section 129-A. First of all, to restrict the right of appeal to the Collector of Customs or to other party would tantamount to re-writing Section 129-A(1). By substituting the word 'party' in place of any person the communication of the order shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but provides for a peculiar procedure which is sui jeneris. The Section empowers the Board to call for the record of any proceedings before the Collector of Customs as an adjudicating authority to examine legality or propriety of any decision or order. If the Board is satisfied, it can direct the Collector to apply to the Appellate Tribunal for determination of such points arising out of the decision or the order, as may be specified by the Board in its order. The Board can exercise the power not later than two years from the date of the decision or order. After receiving such a direction the Collector makes an application to the Appellate Tribunal within three months from the date of communication of the order of the Board. The Appellate Tribunal hears such an application "as if such application were an appeal" and the procedure to be followed is that of Section 129-A regarding appeals. Counsel for M/s. Northern Plastics Ltd. submits that the appellate power, thus, can be exercised only by the Board or the Collector under Section 129-D. This appears to be also the basis on which the Appellate Tribunal has passed the impugned order. The very terminology of the Section makes it clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberally construed, as claimed by the petitioners, it would open the flood-gates and every Ministry and the instrumentality of the State might keep on filing appeals. A similar submission was made in Dabholkar and S.P. Gupta before the Supreme Court when it liberalised the concept of locus standi and the same has been squarely rejected by the Supreme Court as being imaginary and without any factual basis. 18. Counsel for M/s. Northern Plastics Ltd. vehemently argued that M/s. Hindustan Photo Films Manufacturing Co. Ltd. is merely a competitor of Northern Plastics Ltd. and, therefore, cannot be called an 'aggrieved person' to file an appeal. Hindustan Photo Films Manufacturing Co. Ltd. is a government company established especially for the purpose of manufacture and sale of photo-sensitized material and the Central Government has invested about Rs. 400 crores in the company. The statutory Corporations and government companies are the instrumentality of the State. They are established for the specific purpose of discharging the governmental functions of establishing and running industries and trade. They are the alter ego of the State. That is the reason they are covered by Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench of this Court allowed the contentions of M/s. Hindustan Photo Films Manufacturing Co. Ltd. and joined them as respondents in the writ petitions. The Division Bench observed, "we have carefully examined the documents on record, the submissions of the counsel and the order of the Supreme Court dated 4-4-89. We are of the opinion that presence of Hindustan Photo Films Ltd. as a party-respondent is vital from the point of view of effectively resolving the controversy and for doing full justice to parties. Hindustan Photo Films Ltd. is a Government of India concern in which more than 400 crores of rupees have been invested by the Government of India for manufacture of photographic material in India. The object is to save valuable foreign exchange required to be spent for importing photographic files, the demand for which has shot up very high and will continue to do so in future. It was inevitable during the teething trouble of the public corporation that certain concessions in customs duty should be given to the said Coporation. If indiscriminate and large scale imports of the said material is permitted to the private industry in collaboration with the multi-nationals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tervention application filed by M/s. Hindustan Photo Films Ltd. 23. It is thus clear that not only the three High Courts in India, viz. Madras, Calcutta and Delhi had found that Hindustan Photo Films Ltd. has vital stakes in the matter and should be permitted to contest the writ petitions, but the Supreme Court has confirmed the said position. The Appellate Tribunal, however, rejected the claim of the Hindustan Photo Films Ltd. (and also of the Union of India) on the ground that there is a difference between original proceedings in the High Court and the Appeals before the Appellate Tribunal under Section 129-A of the Customs Act. We have already held that this approach of the Appellate Tribunal was erroneous. The principal question to be answered in both the original as well as the appeal remedy is whether the party in question has vital interest and stakes by virtue of its powers and functions. In other words, the Appellate Tribunal should examine whether the party in question is merely a stranger or meddling interloper or a busy body. The Appellate Tribunal has recognised that in original proceedings both Hindustan Photo Films Ltd. and Union of India have vital stakes and, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the filing of the application. When the matter came up for hearing on the application for the vacation of stay before us, counsel for both the parties agreed that instead of passing an order on the release of goods only, we should dispose of the question as to whether the Union of India and M/s. Hindustan Photo Films Ltd. are "aggrieved persons" for the purpose of filing the appeal under Section 129 before the Appellate Tribunal. Hence, we heard the matter on that question only. 26. Before the Supreme Court both the parties had agreed that the goods in question may be stored in the godowns of M/s. Northern Plastics Ltd. under the supervision and control of the Customs Authorities. On that basis the Division Bench had passed an order c(n October 3, 1989, incorporating the said submission of the parties before the Supreme Court. 27. We have held that the Union of India and M/s. Hindustan Photo Films Ltd. are 'aggrieved persons' and can maintain an appeal under Section 129-A of the Customs Act. The main question in the writ petition at the root of the entire controversy between the parties is whether the said importation of the photo-sensitized material at Bombay was legal or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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