Pyarsaheb Kesarisingh Rana vs B.K. Solanki, Dy. Director, FERA

Pendse, J.—Only few facts are required to be stated to appreciate the grievance of the petitioner against the order passed by the Deputy Director, Foreign Exchange Enforcement and communicated to the petitioner on August 13,1982, copy of which is annexed as Ex. "K" to the petition. The petitioner carried on business of export of fresh fruits and vegetable to the United Kingdom in the year 1971 and on November 28,1972 his house was raided and on the next day, the petitioner was arrested. The petitioner was ultimately discharged on December 19, 1977 as the Enforcement Branch did not file any criminal complaint. The petitioner was served with show cause notice dated June 4, 1977 to explain why proceedings should not be taken for violation of provisions of Section 5(1)(a) of the Foreign Exchange Regulation Act, 1947. The proceedings were held and adjudication order was passed on December 29, 1979 by the Special Director holding the petitioner guilty of the offences. The order which is communicated to the petitioner, inter alia, stated that the petitioner has right to file an appeal before the Chairman, Foreign Exchange Regulation Appellate Board within a period of 45 days.

It is the claim of the petitioner that he preferred an appeal to the Appellate Court, but received an intimation from the Board to show cause as to how the appeal was lodged within period of limitation. The petitioner sent reply and claimed that the appeal was filed in time, but in any event the delay should be condoned. The Board had not passed any order in respect of the appeal, but in the meanwhile, the Deputy Director informed the petitioner that the order passed in accordance with proviso of Section 23(D)(1) of the Act is not appealable u/s 52 of the Act and the reference to an appeal on the first page of order dated December 29, 1979 was due to inadvertence .The Deputy Director further stated that the opportunity period is extended and complaint would be filed if the petitioner failed to produce the requisite permission from the Reserve Bank of India. This communication has given rise to the filing of the petition.

Shri Damania, learned counsel appearing on behalf of the petitioner, submitted that the action of the petitioner, submitted that the action of the Deputy Director is totally illegal as it is for the Appellate Board to decide whether the appeal is maintainable or not. Shri Damania is right in his contention that as the appeal is already lodged before the Appellate Board, it is for the Board to determine whether the appeal is competent, whether the appeal is filed within time, and whether the appeal has any merit. It is not for the authority whose order is challenged in appeal to determine that issue. Shri Sethna, learned counsel appearing on behalf of the Department, realised the infirmity in the order passed by the Deputy Director, but tried to urge that the Board had decided in some other matter that appeal is not competent. It is futile to sustain the order of the Deputy Director on this count. The Board must hear the petitioner and then take a decision and merely because in some other matter the Board has held that the appeal is not maintainable is not enough for the lower authority to decide that the appeal is not competent and action would be taken against the petitioner. In my judgment, the order communicated to the petitioner by letter dated August 13, 1982 is required to be struck down.

Accordingly, the petition succeeds and the decision communicated by letter dated August 13, 1982 issued by the Deputy Director, copy of which is annexed as Ex. "K". is struck down. The Deputy Director may proceed with the matter after the order is passed by the Appellate Board. In the circumstances of the case, there will be no order as to costs.