Gujarat High Court
N.L. Dubasia & vs Union Of India Thr' & 2 on 11 August, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/6964/2005 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6964 of 2005
With
CIVIL APPLICATION NO. 11929 of 2011
In
SPECIAL CIVIL APPLICATION NO. 6964 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of No India or any order made thereunder ?
========================================================== N.L. DUBASIA & 1....Petitioner(s) Versus UNION OF INDIA THR' & 2....Respondent(s) ========================================================== Appearance:
HCLS COMMITTEE, ADVOCATE for the Petitioner(s) No. 2 MR. JAINISH P SHAH, ADVOCATE for the Petitioner(s) No. 2 MS E.SHAILAJA, ADVOCATE for the Petitioner(s) No. 1 MR UDAY JOSHI FOR M/S TRIVEDI & GUPTA, ADVOCATE for the Respondent(s) No. 3 MR AMAR N BHATT, ADVOCATE for the Respondent(s) No. 2 MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 1.1 - 1.2 MS BELA A PRAJAPATI, ADVOCATE for the Respondent(s) No. 1.1 - 1.2 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Page 1 of 18 HC-NIC Page 1 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT Date : 11/08/2017 COMMON CAV JUDGMENT Besides that the pleadings of the petitioners were noticed to be casual, clumsy and wanting in legal quality, as there was no express prayer clause in the petition, learned advocate for the petitioner No.2 Mr.Jainish Shah was asked at the outset about it. While learned advocate for the petitioner was entirely at his receiving end, he tried to point out paragraph 10 of the petition reflecting a prayer, further submitting that as he has not drafted the petition and earlier the petitioner had been appearing as party-in-person, the petition suffers from want of proper pleadings, in particular the prayer.
2. Upon perusal of paragraph 10, it could not be said to be containing prayer. Not only vague expressions were made, it was requested to award relief prayed for in some other writ petition which was Special Civil Application No.1472 of 2003. It was submitted by learned advocate for the petitioner that in the present petition the very prayers prayed for in the said Special Civil Application of 2003 have been asked for. As this petition was devoid of proper prayer, virtually with no prayer, the same could have been dismissed on the said ground alone. Resisting to deprecate the state of affairs, since the party-in-
person had originally appeared, it was leniently looked at.
2.1 Learned advocate for the petitioner Page 2 of 18 HC-NIC Page 2 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT simultaneously submitted that the party-in-person had filed Civil Application No.11929 of 2011 with certain prayers which included the following two prayers, further praying to grant the same.
"(v) to direct RBI, Respondent 2, to provide signed or certified copy, of the affidavit (dated 28-9-2011) made by Mr.K.Neethi Ragavan, Deputy General Manager, RBI, and filed in the H'ble High Court on 19-10-25011. -
vide Annexure SCA/6964/2005 - CA-November 2011// No.4 (in its unsigned state) as received on 29-9-2011;
(vii) to direct Mr.Amar N. Bhatt, the Learned Counsel for RBI, respondent 2, to name his clerk and to let know, his clerk's location in the H'ble High Court, to the petitioners."
2.2 The above two prayers are granted for incorporation of prayers sought for in the present petition. The Civil Application contains as many as 11 prayers, none of which except the above two, are grantable, which again were seen to have been drafted with scant knowledge of drafting and pleadings.
2.3 Rule was issued in the present petition on 17th January, 2006 and the question with regard to maintainability of the petition was kept open by the Court.
2.4 It may be further recorded that this very petition was earlier dismissed by this Court as per judgment dated 19th February, 2010. The Division Bench in Letters Patent Appeal No.1659 of 2010 referred against the said judgment remanded the petition on the ground that the impugned order was non-speaking order. The Letters Patent Bench in its order dated 07th July, 2011 observed as under.
"6. Having heard the learned counsel for the parties Page 3 of 18 HC-NIC Page 3 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT and the appellant in person, we are of the view that the learned Single Judge ought to have at least discussed the case of the petitioner, what was the stand taken by the petitioner before the learned Single Judge and the ratio laid down by the Supreme Court in the judgment referred to and thereby ought to have passed a speaking order in the matter. The impugned order being not a speaking order to that effect, we set aside the order dated 19.2.2010 passed by the learned Single Judge in Special Civil Application No.6964 of 2005 and remit the writ petition for hearing on merits by the learned Single Judge. Office is directed to list it before appropriate Court on 18th July 2011."
2.5 Accordingly, the present Special Civil Application came to be posted again and reached hearing before this Bench.
3. What the petitioners seek herein, are thus the same prayers as made in Special Civil Application No.1472 of 2003. This petition was withdrawn as per order dated 18th October, 2004. The prayers made, and re-sought in the present petition are reproduced hereunder.
"8(A) The respondents Nos.2 and 3 may be directed by a writ of mandamus or any other appropriate writ, direction or order to reply the amount deposited by the petitioner in FCNR Accounts with the State Bank of India from the year 1979 onwards at the rate of reconversion prevailing on the original date of deposit from the date of deposit;
(B) To direct the respondents namely Reserve Bank of India and State Bank of India to reconvert the amount of principal and interest thereon dealing to the petitioners at the exchange rate of Rs.13.07 per US$ that was adopted on the date of conversion i.e. on 7.4.1998 as the notional rate of exchange and to make it transferable outside India;
(C) To direct respondent No.2 Reserve Bank of India, in case of NRE Rupee deposit with other Banks as per the Ann.'A' dt.22.4.1988.
(i) To pay the difference amounts resulting from the proportional adjustments to the exchange rates that existed on the dates of remittances and the date of Page 4 of 18 HC-NIC Page 4 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT releases.
(ii) to pay interest thereon at 24% p.a. Compounded quarterly till the dates of repayment and;
(iii) to make all these amounts transferable outside India at the current exchange rates.
(D) To Award such amount of interest on the aforesaid amount as may be required in the in the interest of justice."
3.1 Thus it appears that the petition is for a direction on the respondents to refund the amount deposited by the petitioners in FCNR Account with the State Bank of India since 1979 onwards at the rate of reconversion prevailing on the original date of deposit from the date of deposit. Further, the petitioners claimed refund of the amount at the exchange rate of Rs.13.07 per US$ that was adopted on the date of conversion i.e. 07th April, 1998.
3.2 Even as there was an emphatic preliminary contention by learned advocate Mr.Amar Bhatt appearing for respondent No.2-Reserve Bank of India, that the petition was liable to be not entertained on the ground of inordinate delay, and further on account of applicability of principles of res judicata and in the principles analogous thereto, adverting to notice the relevant facts of the case could not have been skipped, for, it would be only useful to consider the matter on all counts of merits, including the aforesaid contentions.
3.3 The petitioners came with a case that the petitioners-the father and son landed in India in January, 1988 to arrive at their native place at Page 5 of 18 HC-NIC Page 5 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT Village Mankuva in the Kutch district from the country of Ghana where the first petitioner had migrated in the year 1965. On 22nd April, 1988 the petitioner No.1 addressed a letter to respondent No.2-Reserve Bank of India to state that substantial funds was receivable from the Government of Ghana and to request the Reserve Bank to permit to have their funds carry the same status. The petitioners were holding Foreign Currency Non-Resident (FCNR)/NRE Account. By immediately followed another letter, the petitioners stated that they had come to India with a view to set up a small scale industry in Gujarat, but felt that the picture in industry in general was gloomy and by so saying, they repeated the request for permitting to continue the NRE/FCNR status.
3.4 The Reserve Bank of India by letter dated 30th September, 1988 communicated to the petitioners that the RBI was agreeable to continue to maintain any one of the two foreign currency accounts with Barclay Bank, London and Western Trust Plymouth, U.K., upto 31st December, 1988 or till the petitioners settle their dues abroad, subject to certain conditions which included keeping of minimum balance and other conditions mentioned, noticing therefrom the main conditions.
"3. All other debits and credits will require prior approval of Reserve Bank of India;
4. Balance in excess of the minimum amount required to keep the account running, should be repatriated to India and a local bank certificate produced to us in support of;
5. The joint account holder should not operate on the Page 6 of 18 HC-NIC Page 6 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT account without our prior approval whenever he/she goes abroad for any purpose's."
3.5 The petitioners replied on 23rd October, 1988. The Reserve Bank allowed the petitioners to continue to foreign currency account as per communication dated 30th March, 1989 on the same conditions mentioned in its previous communication dated 30th September, 1988. The petitioners were required as a condition, to re-designate the NRI Account into Resident Account. However, the petitioners by letter dated 27th July, 1989 sought for continuance of NRE/FCNR Account in the same status without converting them to Resident Account, and further claimed exemption from the Exchange Control Regulations. The Reserve Bank of India repeated and reminded the conditions, asking the petitioners by letter dated 14th September, 1989 for re-designating the account as ordinary resident account. The petitioners did not abide by the conditions, as a result of which the Reserve Bank of India on 14th September, 1990 intimated the petitioner No.1 that he had not complied with the instructions. By another letter dated 14th December, 1990 the petitioner was reminded that documentary evidence showing re- designation of FCNR Account were not made available and also that the petitioners were maintaining a foreign currency account with Bordays Bank with a very high balance.
3.6 It appears that thereafter in January, 1991, the petitioner addressed a letter to Reserve Bank of India stating that he may be given a special Page 7 of 18 HC-NIC Page 7 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT treatment. On 26th August, 1993 a letter came to be addressed by Reserve Bank of India to the Manager, State Bank of India, Bombay, for confirmation about redesignation of FCNR/NRE Account to Ordinary Resident Account. The State Bank of India stated that it was not advised about change of status of the account. Thereafter further correspondence ensue. In June, 1994, petitioner No.1 left India. Thereafter on 23rd March, 1994 petitioner No.2 addressed a letter to Reserve Bank of India wanting to convert FCNR Account to EFC Account. It appears that at that time the Enforcement Director had carried out certain investigation. On 08th December, 1997, Reserve Bank of India addressed letter to the petitioner inter alia stating in respect of the subject matter as under.
"In this connection was advise that as per exchange control regulations the NRE/FCNR a/cs. of the returning Indias are required to be converted into resident a/cs, from the late of their arrival in India. Since you returned to India on 1.2.1988 all the NRE/FCNR a/cs. maintained by you should have been redesignated as resident a/cs, from that date. It is observed that except the FCNR a/cs. with State Bank of India, your non-resident a/cs. maintained with other Ads have been designated as resident a/cs. We are, therefore, advising State Bank of India, suitably, in the matter Further, as you have not opted for the RIFEE facility despite our advice, we regret our inability to accede to your request to convert the a/cs. with State Bank of India to RFC a/c. /repartriation abroad."
3.7 The aforesaid resulted into further correspondence, petitioner addressing letters to State Bank of India and making representations to the other authorities in 2003. The petitioner filed Special Civil Application No.1472 of 2003. This Special Civil Application came to be disposed of on 18th October, 2004, the order reads as under.
Page 8 of 18HC-NIC Page 8 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT "Mr.R C Jani learned advocate for the petitioners seeks permission to withdraw the petition with a view to make a representation before the Reserve Bank of India. Permission as prayed for is granted. The petition stands disposed of as withdrawn. Notice is discharged with no order as to costs."
3.8 The petition with the similar prayer was withdrawn as above. The petitioner made a representation before the Reserve Bank of India. The representation came to be decided on 26th February, 2005. The Reserve Bank of India noticed relevant aspects and decide as under which was communicated to the petitioner.
". Shri N.L. Dubasia and his family members had arrived in India on 1st February, 1988 after many years of service in Ghana and had declared their foreign currency assets and bank accounts in India to us.
• While we had granted permission to maintain the foreign currency accounts abroad upto 31st December 1988, they were advised to redesignate all their NRE/FCNR accounts maintained with different authorised dealers as resident accounts vide our letter dated 30th September 1988.
• The permission to maintain foreign currency account abroad was extended upto 31st December 1996 vide our letter dated 30th March 1989.
• The parties represented on 27.7.1989 on our above decision stating that they should continue to be treated as NRIs for five years as they had come to India on a temporary basis.
• They were advised vide our letter dated 14th September 1989 that retaining NRI status for long period is not permitted and that in case they go abroad their converted accounts can be designated as NRE/FCNR accounts with RBI's approval. They were therefore advised to immediately redesignatge all the NRE/FCNR accounts as ordinary resident accounts and produce documentary evidence to that effect.
• They were advised in February 1991 to approach our Ahmedabad RO to claim RIFEES on amounts repatriated to Page 9 of 18 HC-NIC Page 9 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT India to meet their financial liabilities outside India. Shri Dubasia was permitted to continue to maintain account No.66975206 with Western Trust Plymouth, U.K. vide our letter dated 14th September 1990. The concerned authorised dealers were advised on 26th August 1993 to convert the NRE/FCNR accounts to resident accounts with effect from 1st February 1988, under intimation to us. However the parties not only failed to comply with our instructions despite repeated advices but also reshuffled/renewed their NRE/FCNR accounts. Meanwhile all the authorised dealers, except State Bank of India, had reconverted the NRE/FCNR accounts to resident accounts. As regards the FCNR accounts with State Bank of India, the authorised dealer sought permission to continue these accounts since the applicants had left India on 9th June 1994.
• State Bank of India had informed us vide their letter dated 27th October 1997 that the FCNR accounts have not been converted into resident accounts for want of our advice and pendency of the matter before ED.
• Subsequently, Shri Dubasia vide his letter dated 14th October 1997 sought the intervention of the High Commission of India, Nairobi for getting his funds repatriated. The matter was examined by us and it was decided that since the applicant did not opt for RIFE facility despite our advice, his request for repatriation of his funds cannot be acceded to. Shri and Smt. Dubasia were advised accordingly vide our letter dated 8th December 1997. State Bank of India was advised vide our letter dated 8th December 1997 to convert the FCNR accounts to resident accounts with effect from 1st February 1988 at the exchange rate prevalent on the date and surrender the interest claimed from Reserve Bank of India from 1st February 1988 and redesignate the rupee accounts as NRO accounts from the date on which the account holders again became NIRs.
• State Bank of India vide their letter dated 3rd September 1998 advised us having complied with our instructions to convert NRE/FCNR into rupee account and an amount of Rs.6,62,371 was paid as interest, net of taxes to Shri Dubasia from February 1988.
In this Connection, it may be noted that the parties were residing in India from 1st February 1988 to 09th June 1994 before becoming non-residents again. Further despite our repeated advices to redesignate the non- resident accounts as early as 30th September 1988, the applicants have not complied with our instructions.
In the circumstances, we have not acceded to his request for conversion of the FCNR accounts at the Page 10 of 18 HC-NIC Page 10 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT present exchange rate and also for repatriation of the funds."
3.9 The present petition came to be filed as the petitioners became aggrieved by the aforesaid decision of the Reserve Bank of India, on the representation made. It may be noted that the present Special Civil Application was dismissed on 19th February, 2010. In the Letters Patent Appeal No.1659 of 2010, the Division Bench took view that the order passed while dismissing the Special Civil Application was not the reasoned order. Therefore, the Letters Patent Bench remitted the matter back. Accordingly the same posted before this Court.
4. Heard learned advocate Mr.Jainish Shah for petitioner No.2, learned advocate Mr.Amar Bhatt for respondent No.2 and learned advocate Mr.Uday Joshi for M/s.Trivedi & Gupta, Advocates, for respondent No.3.
5. From the facts noticed from the record and relevant of which noted hereinabove, and further considering the rival submissions, this petition deserves to be dismissed on certain preliminary grounds alone. What is under challenge in substance is the decision of the Reserve Bank of India dated 30th September, 1988. About this decision, the petitioner was aware, at least in the year 1993. The petitioner was aware that the Reserve Bank of India did not permit him to continue the non-resident status. State Bank of India redesignated the account of the petitioner and made payment on 03rd September, 1998. By communication dated 03rd September, 1998 addressed to Page 11 of 18 HC-NIC Page 11 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT the petitioner, State Bank of India, pursuant to the direction given by the Reserve Bank of India, Exchange Control Department, Central Office, Mumbai, credited amount of Rs.06,62,371/- in the account of the petitioner. The petitioner filed petition in the year 2003. Even before the said Special Civil Application No.1472 was filed in the year 2003, the petitioner had approached Supreme Court with similar grievance. On 29th August, 2002, the order was recorded by the Supreme Court that "learned counsel for the petitioners seek permission to withdraw the writ petition with liberty to approach the high court for appropriate relief. This writ petition is, accordingly, dismissed as withdrawn". Also came to be withdrawn as above the Special Civil Application No.1472 of 2003, the petitioner opting to make representation in the matter to Reserve Bank of India.
5.1 It is clear that though the petitioner was aware at least since 1993 about decision with which he was dissatisfied, he sat tight for long 10 years. In the year 2002, he approached the Supreme Court and thereafter again filed petition before this Court. The petitioner is not entitled to relief on the ground that he whiled away the time without any excuse. Delay and latches actuated in indolence on part of the petitioner are the grounds alone on the basis of which this petition is dismissed. Learned advocate for the Reserve Bank of India could successfully rely on decision of the Supreme Court in C. Jacob v. Director of Geology [(2008) 10 SCC 115] and Yunus (Baboobhai) A. Hamid v. State of Maharashtra [(2009) 3 SCC 281] Page 12 of 18 HC-NIC Page 12 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT on this aspect.
5.2 Furthermore, as the Special Civil Application No.1472 of 2003 was filed on the basis of same cause of action which was withdrawn by the petitioner with a view to make representation as per the order referred to above, prayers in this petition could be said to be barred by principles of res judicata and the principles analogous thereto. Though the petitioner made representation, it is the same set of facts on the basis of which the cause of action arises. The Apex Court in State of Tamil Nadu v. Amala Annai Higher Secondary School [(2009) 9 SCC 286] held that the second writ petition would not be maintainable where no new cause of action had arisen. In that case, writ petition was filed by the respondent school praying that the State Government be directed to consider their representation dated 20th January, 1997 for grant of one post of Junior Assistant. The State Government rejected the representation. It was held that it was not open for the school to file another petition for the same relief. It was held that subsequent representations were made by the school to the Government reiterating request for sanction of the post, no new cause of action had arisen. In Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior [AIR 1987 SC 88] the Supreme Court asserted the principle that withdrawal of petition under Article 226 without permission to institute a fresh petition would not permit subsequently the petitioner to file fresh petition in respect of the same cause of action. In Page 13 of 18 HC-NIC Page 13 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT Patan Taluka Muman's Cattle Breeding and Milk Supplying v State of Gujarat [1996(2) GLH 752], the Court held that when a writ petition under Article 226 was filed and withdrawn on previous occasion, subsequent petition for the same relief cannot be entertained. It was held that even if the principles of res judicata were not to apply, the second petition would be barred on the ground of public policy. Therefore, the proposition is clear that once the petition was withdrawn without liberty to file fresh petition, mere making of representation would not furnish a new cause of action. Therefore on all the above preliminary grounds, the petition is liable to be dismissed.
6. Even looking at the merits of the case and the prayers of the petitioners, petitioners acquired status of non-resident Indian by operation of law, as, admittedly, they come to India on 01st February, 1988 and stayed until June, 1988. Section 2(p) of the Foreign Exchange Regulation Act, 1973 defines a person resident in India as under.
"2(p) "person resident in India" means -
(i) a citizen of India, who has, at any time after the 25th day of March, 1947, been staying in India but does not include a citizen of India who has gone out of, or stays outside, India, in either case-
(a) for or on taking up employment outside India, or
(b) for carrying on outside India a business or vocation outside India, or
(c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;
(ii) a citizen of India, who having ceased by virtue of paragraph (a) or paragraph (b) or paragraph (c) of sub-Page 14 of 18
HC-NIC Page 14 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT clause (I) to be resident in India, returns to, or stays in, India, in either case -
(a) for or on taking up employment in India, or
(b) for carrying on in India a business or vocation in India, or
(c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(iii) a person, not being a citizen of India, who has come to, or stays in, India, in either case -
(a) for or on taking up employment in India, or
(b) for carrying on in India a business or vocation in India, or
(c) for staying with his or her spouse, such spouse being a person resident in India, or
(d) for any other purposes, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(iv) a citizen of India, who, not having stayed in India at any time after the 25th day of March, 1947, comes to India for any of the purposes referred to in paragraphs (a), (b) and (c) of sub-clause (iii) or for the purpose and in the circumstances referred to in paragraph (d) of that sub-clause or having come to India stays in India for any such purpose and in such circumstances.
Explanation -A person, who has, by reason only of paragraph (a) or paragraph (b) or paragraph (d) of sub- clause (iii) been resident in India, shall, during any period in which he is outside India, be deemed to be not resident in India."
6.1 From the facts and record of the petition, following aspects emerged and they were highlighted on behalf of the Reserve Bank of India. These facts disentitle the petitioners to claim any relief in the present petition.
"(a) Petitioners requests were considered by RBI and a reply was given on 30.09.1988 (Annexure R-1 page 165-
166) by which petitioner No.1 was granted permission for continuing any one of the two foreign accounts for a period upto 31.12.1988 or till the date of receipt of settlement of outstanding dues from abroad, whichever is earlier and subject to the conditions mentioned therein. RBI also advised the petitioner No.1 to repatriate the balance in excess of the minimum amount Page 15 of 18 HC-NIC Page 15 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT required to keep amount running and was also advised to close other foreign currency accounts by reporting the entire balance to India.
(b) By letters dated 30.09.1988 (page 81-83), 30.03.1989 (page 87), 14.09.1989 (page 80), 14.12.1990 (page 93), the petitioners were advised to redesignate their Non Resident Accounts to Resident Accounts. They were also advised to avail of RIFEE facility. However, the petitioners did not comply with those advices. The conditions on which the petitioner was permitted to maintain any of the two foreign currency accounts with Barclays Bank London and Western Plymouth UK as contained in RBI's letter dated 30.09.1988 (page 81-84) were not complied by the petitioners.
(c) The petitioners did not inform SBI about the change in their residential status in time and have been trying to maintain their foreign currency account as non residents. The petitioners only disclosed their change in residential status to RBI, only after RBI issued letter dated 26.08.1993 (page 97) to SBI.
(d) The petitioners are precluded from seeking benefit of clause 29A.15 of Exchange Control Manual which grants exemption for a period of 5 years or more in case of exploratory purposes the petitioner have never approached RBI seeking permission for continuance of NRE/FCNR a/cs for exploration purpose. Letter purported to be written by the petitioner in April, 1988 at page 97 is denied by RBI at page 162.
(e) The petitioners had not only failed to comply with the instruments of RBI but have also renewed their NRE/FCNR accounts and therefore, the matter was referred to the Enforcement Directorate on 30.11.1994.
In the meantime, all the authorized dealers except SBI had controverted the petitioners' NRE/FCNR Accounts to residential accounts.
(f) Petitioner No.1 vide its letter dated 14.10.1997 sought the intervention of the High Commission of India, Nairobi for getting funds repatriated and the matter was examined by RBI and it was decided that since the petitioners did not opt for RIFEE Facility despite the repeated advice of RBI, the petitioners' request for repatriation of their funds cannot be acceded to by RBI."
6.2 When learned advocate for the Reserve Bank of India relied on the provision of Section 78of the Foreign Exchange Regulation Act, 1973 and Section 44 of the Act to contend that the petitioner was barred Page 16 of 18 HC-NIC Page 16 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT by virtue of the said provision, which submission could not be brushed aside lightly. Section 44 provides that no suit, prosecution or other legal proceedings shall lie against the Central Government or the Reserve Bank or any officer of Government or of the Reserve Bank or any other person exercising any power or discharging functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule, regulation, notification, direction or order made thereunder. Similarly, Section 78 says that no suit, prosecution or legal proceedings shall lie against the Central Government or the Reserve Bank or any officer of Government or of the Reserve Bank or any other person exercising any powers or discharging functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule, direction or order made thereunder.
6.3 It may also be stated that petitioner No.2 in his letter dated 04th January, 1991 addressed to the Controller, Exchange Control Department, Reserve Bank of India as under, that he may be given special treatment.
"Though I may not be normally/ordinarily eligible for grant of exemption from the exchange control Regulations requiring surrender of FC balances, and continuance of NRE/FCNR status for a period of five years, but here I submit that my case deserves special and sympathetic consideration on this matter."
6.4 In the above submission there was a tacit admission that the petitioners were not entitled to the grant of exemption but only wanted a sympathetic consideration and special treatment, which could not Page 17 of 18 HC-NIC Page 17 of 18 Created On Fri Sep 01 00:10:55 IST 2017 C/SCA/6964/2005 CAV JUDGMENT be given in law. The entire case of the petitioners was on a weaker footing on merits.
6.5 In the overall conspectus of merit in the case, the petitioner who had come to India from foreign country, wanted that their NRI Account/FCNR Account may be continued in the same status. It was a kind of privilege claimed. Such status could be accorded only within the permissible parameters and in accordance with law by the Reserve Bank of India. It is difficult to conceive that the petitioners' claim to maintain status of FCNR Account could be asserted as enforceable right. It was only a kind of benefit offered to such class of persons. The petitioners cannot enjoy such benefit when they did not comply with the conditions.
7. For all the aforesaid reasons and grounds, the petition is bereft of merits. No relief is liable to be granted to the petitioner. Therefore, the petition is dismissed with cost of Rs.20,000/- which shall be deposited by the petitioner with Gujarat High Court Legal Aid Committee on or before 31st August, 2017 and the receipt shall be produced with the Registry. Rule stands discharged.
The Civil Application No.11929 of 2011 also stands dismissed except for accepting the prayers in paragraph 11(i) and 11(ii) which are granted as above.
(N.V.ANJARIA, J.) Anup Page 18 of 18 HC-NIC Page 18 of 18 Created On Fri Sep 01 00:10:55 IST 2017