UNION OF INDIA Vs. VITHAL SHIVANAND PALEKAR

JUDGEMENT

(1.) This judgment will rule upon an application for condonation of delay and the Maintainability of an appeal purporting to be under section 54 of the Foreign Exchange Regulation Act , 1973 (FERA). Respondent-hereinafter referred to as Palekar-was served with a memorandum bearing No. T-4/19/DD/BKS/B/83 (ii) dated 23-2-1983 by the Enforcement Directorate, Bombay. This memorandum alleged that on a trip to United States of America, he had been given a Credit Card by Philips E. Carne of Johnson International, USA; that he had used the said Card for meeting certain personal expenses, and, that by so doing, he had contravened the provisions of sections 8(1) and 9(1)(a) of the FERA. Palekar was called upon to show cause why a penalty should not be imposed upon him. The reply given by Palekar did not satisfy the Adjudicating Officer. That Officer held that the charge was established and imposed a penalty of Rs. 7,500/- against Palekar. Upon this, Palekar lodged an appeal with the Foreign Exchange Regulation Appellate Board. This appeal was numbered as Appeal No. 188 of 1983. It was heard, and on 16th March, 1984, dismissed. After this dismissal, a petition labelled as a "review petition" was moved. The very first line began with a description of the request made in the petition, as being" a request for review, reconsideration and correction of accidental error or omission in the order dated 16th March, 1984 passed by the FERA Board in Appeal No. 188 of 1983". Briefly stated, the petition contended that there was a conflict between the reasoning accepted by the Board which reasoning was set out in earlier paragraphs of the order and the later paragraphs which purported to record conclusions. Apparently, the Board had over-looked the reasoning when it came to record conclusions. The consequence was that an appeal which should have been, and, had in fact allowed, was, by an accidental slip or omission, "dismissed". The petition was registered and notice directed to be issued to the Director of Enforcement. On behalf of the said Director of Enforcement, it was contended that the Appellate Board had no power to review an order passed in appeal, that Palekar in fact wanted reversal of the verdict given in appeal and that this could not be said to be provided by section 65 of the FERA to which recourse was being had by Palekar for showing that the petition was maintainable in law. The Board over-ruled the objection raised by the Director of Enforcement and held that the application sought exercise of powers conferred upon the Board by section 65 of the FERA; that there was substance in the contention put forth by Palekar, and, that the appeal in fact should have been allowed instead of the dismissal recorded due to an error in the first instance. For that reason, an amendment was directed to be made in the order, and, the conclusion now became one favourable to Palekar. This order was passed on February 27, 1986.

(2.) The Union of India, purporting to act through the Director of Enforcement, lodged an appeal under section 54 of the FERA on 16-6-1986. The office recorded an objection pointing out that prima facie the appeal seemed to be beyond time as it had been lodged after the expiry of 60 days which came to an and on 9-5-1986 as reckoned from 27-2-1986. To get over this difficulty, the Union of India again acting through the Director of Enforcement moved an application for condonation of delay on 23-7-1986. This application recited various dates and the events that took place on those dated. A brief summary thereof is given below:- <FRM>JUDGEMENT_539_BCR1_1987Html1.htm</FRM> The application goes on to recite that the delay was attributable to long procedural formalities, there being only one typist in the Bombay office and that typist going on leave, and lastly the belief of the Bombay office that during the summer vacation the High Court did not receive petitions or appeal memos etc. etc. It is said that the delay was neither intentional nor deliberate, and therefore, deserved to be condoned.

(3.) Palekar opposes the request for condonation of delay and raised two further questions, viz. (i) that the Director of Enforcement who has moved the application as also the appeal, has no locus standi to act on behalf of the Union of India and (ii) that the appeal is not maintainable in law. I do not propose to go into the question of locus standi of the Director of Enforcement to act on behalf of the Union on India. Here also I must make it clear that there is good authority in support of the stand taken by Palekar and that authority is to be found in (Director of Enforcement, Madras v. Rama Arangannal and another) reported at A.I.R. 1981 Madras 80. I do not propose to go into that question, in the matter before me, because a request was made on behalf of the appellant to obtain proper instructions on the subject. On this very ground, an adjournment was granted earlier, but to no avail. Be that as it may, if proper instructions have not been made available, it will not be fair to sustain the objection in regard to locus standi of the Director to initiate proceedings on behalf of the Union of India. Keeping that objection in abeyence, I move on to the contention regarding the maintainability of the appeal.