SUNDER N MIRPURI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner by the present petition has impugned the Notification dated 15-6-1977 in so far as it purports to come into force with retrospective effect from 1st April, 1974 is illegal, unconstitutional and invalid and for a further declaration that Notification dated 25th September, 1958 will apply to the transfers allegedly made by the petitioner through his foreign currency accounts in the year 1974-75. The petitioner also seeks a writ of certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction calling for the records of the case and after considering the legality, validity and propriety of the impugned notification dated 15th june, 1977 and of the impugned order dated 13th February, 1991 be pleased to quash the same.

(2.) A few facts now may be set out : government of India had issued Notification dated 25-9-1958 in exercise of powers conferred by section 9 of the Foreign Exchange Regulation Act, 1947 (thereinafter referred to as "act") and in supersession of the notification of the Government of India in the Ministry of Finance No. 12 (13)-F. I/47 dated 25th March, 1947, directing that every person in, or resident in, India who owns or holds or who may hereafter own or hold any foreign exchange, whether held in India or abroad expressed in the currency specified in the schedule annexed to this order shall before the expiration of one month from the date of the order, or in the case of a person who hereafter owns or holds such foreign exchange, within one month of the date of his so owning or holding, offer the same or cause it to be offered for sale to an authorised dealer, being a person authorised by the Reserve Bank for the purpose, against payment in rupees, at the rate for the time being authorised by the Reserve Bank in pursuance of sub-section (2) of section 4 of the said Act for conversion into Indian currency of the foreign currency in which such foreign exchange is expressed.

(3.) IT is not necessary to refer to other part of the said notification. The case of the petitioner in that thereafter another notification came to be issued on 15-6-1977 in which it is directed that every person in, or resident India, who owns or holds or who may hereafter own or hold any foreign exchange whether in India or abroad, expressed in any currency other than the expiration of one month from the date of this order or in the case of a person who hereafter owns or holds such foreign exchange within three months of the date of his so owning or holding, offer the same or cause it to be offered for sale to any authorised dealer against payment in rupees, at the rate for the time being authorised by the Reserve Bank in pursuance of sub-section (2) of section 8 of the Act for conversion into Indian currency of the foreign currency in which such foreign exchange is expressed. The order shall not apply amongst others to maintenance of, and operation of any account in foreign currency maintained outside India by foreign citizen in, or resident in, India but not permanently resident therein. By memorandum dated 4-3-1980 issued by the Additional Director, Enforcement Directorate and addressed to the petitioner, it was brought to the attention of the petitioner that during the year 1974-75, the petitioner was now permanently residing in India and held foreign exchange as set out in the show cause notice and had transferred to the persons set out therein who were not authorised dealers and further that the petitioner did not obtain permission from the Reserve Bank of India and for other reasons as set out therein the petitioner was called upon to show cause why proceedings under section 51 of the Act should not be initiated.