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Simon F. Pinto Vs. Assistant Director of Enforcement, Madras and anr. - Court Judgment

LegalCrystal Citation
SubjectFERA
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 3517 of 1979
Judge
Reported inAIR1979Kant181
ActsForeign Exchange Regulation Act, 1947 - Sections 4(1), 4(2) and 52; Constitution of India - Article 226
AppellantSimon F. Pinto
RespondentAssistant Director of Enforcement, Madras and anr.
Excerpt:
.....of a writ of certiorari. - in the said affidavit, he has claimed to be a poor person. 450 per mensem (counsel submits that it is on monthly basis). however, a perusal of para 3 of the same affidavit clearly indicates the reasons for filing the appeal beyond the prescribed time......beyond the period prescribed under s. 52 of the act and dismissed the same.2. sri b. m. baliga, learned counsel for the petitioner, has strenuously contended that the board was not correct in rejecting the appeal which was accompanied with an application for condonation of delay. he has further contended that the board ought to have condoned the delay having regard to the poverty of the petitioner. in order to substantiate the second contention, he has today filed a copy of the affidavit filed in support of the application for condonation of delay before the board. in the said affidavit, he has claimed to be a poor person. he has indicated that his income is about rs. 450 per mensem (counsel submits that it is on monthly basis). however, a perusal of para 3 of the same affidavit.....
Judgment:
ORDER

1. This is a writ petition filed by one Simon F. Pinto against the order dated 8-1-1979 of the Foreign Exchange Regulation Appellate Board (hereinafter referred to as the Board). That order was passed in Appeal No. 26 of 1977 before the Board. The petitioner preferred the said appeal against the order dated 11th Oct., 1976 (signed on 16th Oct., 1976) by the Assistant Director of Enforcement, Madras, holding the appellant guilty of contravention of the provisions of S. 4(1) and S. 4(2) of the Foreign Exchange Regulation Act, 1947 (sic) (hereinafter referred to as the Act). The Board took the view that the appeal was not maintainable inasmuch as the same was filed beyond the period prescribed under S. 52 of the Act and dismissed the same.

2. Sri B. M. Baliga, learned counsel for the petitioner, has strenuously contended that the Board was not correct in rejecting the appeal which was accompanied with an application for condonation of delay. He has further contended that the Board ought to have condoned the delay having regard to the poverty of the petitioner. In order to substantiate the second contention, he has today filed a copy of the affidavit filed in support of the application for condonation of delay before the Board. In the said affidavit, he has claimed to be a poor person. He has indicated that his income is about Rs. 450 per mensem (counsel submits that it is on monthly basis). However, a perusal of para 3 of the same affidavit clearly indicates the reasons for filing the appeal beyond the prescribed time. It is very strange that the petitioner has not taken advantage of sub-clause (2) of S. 52 of the Act which provided for an appeal being filed without the deposit of penalty subject to an application being made in that behalf praying for dispensation of payment of penalty or in the alternative paying the same in instalments. His affidavit also discloses that he was in correspondence with the Assistant Director at Madras regarding the payment of penalty and does not appear to have contemplated filing of an appeal when he first addressed the Assistant Director in the matter of payment of penalty. It is only on 30-11-1976 that he reminded the 1st respondent-Assistant Director that the period for appeal would lapse on 12-12-1976. Even on that date had he presented the appeal he would have been in time and the appeal could have been sent by post.

3. In my opinion, the delay in filing the appeal before the Board has not been properly explained even on the facts stated in the affidavit.

4. The learned counsel for the petitioner has not been able to point out any apparent error in the order of the Board in rejecting his appeal on ground of limitation. He, however, tried to place reliance upon the decision of the Bombay High Court in the case of Yeshwant Tukaram Jadhav v. Vithal Dattoba Sankpal (reported in : AIR1978Bom365 ). The learned single Judge has made a passing observation, towards the end of the judgment, that having regard to the illegality of the order passed, the Judges should take poverty of the appellant in the matter of condonation of delay. I do not want to express any opinion about the said observation. I assume, such observation was made having regard to the facts of the case before him.

5. It, however, transpires that the present petitioner filed Miscellaneous First Appeal N. 150 of 1979 against the impugned order the Board in this court. A Division Bench of the Court has held as follows in the said appeal:

'Heard advocate. No appeal lies against an order or decision passed under sub-section (2) of S. 52 as provided under S. 54 of the Foreign Exchange Act of 1973. Further the Board has dismissed the appeal on a question of limitation after exercising its discretion judicially. Therefore, this appeal is not fit for admission. Hence dismissed.'

6. It is significant also to further observe that the observation of the division bench that the disposal of the appeal by the Board on ground of limitation was by exercising the discretion judicially is binding on me. I therefore do not see any substance in the contentions advanced by the learned counsel for the petitioner since the matter is already concluded by the decision rendered in M. F. A. No. 150 of 1979, in spite of the contention of the learned counsel that the said decision of this Court is not binding on this Court while exercising its jurisdiction under Art. 226 of the Constitution.

7. Petition dismissed.


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