Bombay High Court
Mohibali Roashanali Naser vs Union Of India And Ors. on 23 September, 1988
Equivalent citations: AIR1989BOM237, (1989)91BOMLR506, 1990(25)ECC263, AIR 1989 BOMBAY 237, (1989) MAH LJ 396 1989 BOM LR 506, 1989 BOM LR 506
ORDER
1. This petition seeks to challenge the order dated the 8th Sept. 1986 passed by the Assistant Director. Enforcement (FERA), the respondent No.2 purporting to be one under S. 33(2) of the Foreign Exchange Regulations Act . 1973. By an amendment to the petition it further seeks to challenge the order of adjudication dated the 20th June 1988 passed under Sec. 63.
2. The petitioner is a Travel Agent carrying on business in the firm name of Alshaya Nassar Travels. Respondent No. 1 is the Union of India and the respondent No.2 is the Assistant Director (Enforcement) Respondent No.3 is a Bank authorised by the Reserve Bank of India to deal in foreign exchange.
3. The petitioner, in the course of his business, in the month of June/July 1986 has arranged the passage of two groups of passengers to Hai. The first such group consisting of 200 passengers were scheduled to travel on the 20th July 1986 and the second group of 269 passengers on the 27th July 1986. On the 8th July 1986 the petitioner paid to the respondent No.3 Bank an equivalent amount of rupees for the purchase of foreign exchange (F.T.S.) for the first group of 200 passengers after receiving the said amounts from them. He submitted their passports, A-2 and F.T.S. forms duly certified by I.A.T.A. to the respondent No. 3 Bank along with their air-tickets. The passports were duly endorced for the purpose of obtaining Visa. On the morning of the 18th July, 1986, respondent No. 3 Bank issued foreign exchange (F.T.S) to 118 of the 200 passengers of the first group at Kutchi Memon Jamat Musafir Khana where these up country passengers has arrived and were staying. On the afternoon of the said date Shri Sandeep Naik. A representative of the respondent No.3 Bank came to the office of the petitioner to distribute foreign exchange to the remaining 82 passengers of the first group who had arrived the same morning but wer staying at various places. After foreign exchange was distributed to 28 passengers, the officers from the Enforcement Directorate came for search and seixed from Shri Sandeep Naik, while in the process of delivering foreign exchange to the passengers, foreign exchange amounting to 26,500 U.S. dollars meant for being paid to the balance of 54 passengers. The seizure was purported to have been made under s. 34,. on the 18th July 1986, the respondent No.3 Bank paid foreign exchange amounting to S.26.500 to the 54 passengers of the first group. Hence, the first group left for Haj on the 20th July 1986 as per schedule.
4. In regard to the second group, the petitioner, during the period 12th and the 17th July 1986 after receiving the amounts from the 269 passengers made payment to the respondent No.3 Bank for their foreign exchange. He also submitted their air tickets, passports. A-2 and F.T.S forms duly certified by the I.A.T.A. ticketing agent. On the 21st July 1986 before the foreign exchange could be paid to the passengers of the second group, the officers of the Enforcement Officer came to the premises of respondent No.3 Bank and seized foreign exchange of S.1,32,000 which were meant for the 267 passengers of the second group. Two passengers who were residents of Bombay had already collected their exchange from the Bank.
5. On the 26th of July 1986 the petitioner along with the leaders of the 267 passengers of the second group approached respondent No.3 for their foreign exchange (F.TS.) but respondent No.3 refused to pay and asked them to get the necessary orders from the Enforcement Directorate, 29th July 1986 was the Saturday and the passengers were scheduled to leave on the following day being Sunday, the 27th July. They were left with no time and hence the 267 passengers of the second group had to leave without foreign exchange. Since these passengers were not paid foreign exchange, they did not pay the petitioner their ticket amounts. Correspondence ensued between the petitioner and the Bank in regard to the refund of Rs. 16,87,397 to the petitioners as the Bank had failed to issue foreign exchange. On the 9th Sept, 1986 the Bank's Advocates and Solicitors informed the petitioner's Advocates and Solicitors about the order dated the 8th Sept. 1986 passed by the Enforcement Directorate requiring the Bank to pay Rs. 17,00,057 by Order or by cash within 15days. On the 12th Sept. 1986 the Bank's Advocate & Solicitors informed the petitioner's Advocates & Solicitors that the Bank had paid the said amount on the 10th Sept 1986. It was the petitioner's money which had been paid over by the respondent No.3 Bank to the Enforcement Directorate under the order dated the 8th Sept. 1986. This recovery had been made by the Enforcement Directorate without even issuing a show cause notice to the petitioner. The petitioner therefore on the 3rd Oct. 1986 filed the present petition. He challenged the legality of the order and prayed for refund of that amount.
6. Pending this petition, the Enforcement Directorate issued show cause notice dated the 17the July 1987 for initiating adjudication proceedings under Section 51 read with Section 63. Pending adjudication proceedings, this petition came up for hearing before my learned brother Kurdukar J. on the 11th Jan. 1988. By order dated the 13th Jan. 1988 the respondents were directed to complete adjudication proceedings expeditiously and the petition was adjourned for being taken up after completion of those proceedings. The petitioner by his reply dated 2nd April 1986 and 6th May 1988 denied the charges contained in the show cause notice. On the 20th June 1988 the Enforcement Directorate passed the second impugned order, inter alia, holding the petitioner guilty of all the charges and imposing a penalty of Rs. 60,000/- and Rs. 10,000/- and ordering confiscation of Rs. 17,00, 057 and the foreign exchange of 51, 32,00 and S.26,500. The petitioner on the 12th and 13th July 1988 moved an application for leave to amend the petition and by an order dated the 14th July 1988, leave to amend the petition was granted to challenge the second impugned order. After the respondents had filed their reply to the amended petition, this petition was taken up for hearing.
7. Mr. Andhyarjina, the learned Counsel appearing in support of the petition submitted that the first impunged order dated the 8th Sep. 1986 purporting to be one under S. 33(2) of the FERA was ex-facie illegal and without the authority of law. The amount of Rs. 17,00,057/- which was the subject matter of condcation., to the knowledge of the Respondent No.2, belonged to the petitioner. No show cause notice in regard to that amount was issued to the petitioner and that order was passed behind the back of the petitioner. All that S. 33(2) permitted was to require, by an order in writing, to furnish of to obtain and furnish with information book or other document which under the explanation would include Indian currency as also foreign exchange. What the respondent No. 2 had done in the purported exercise of power under S. 33(2) was to virtually confiscate the amount belonging to the petitioner which could only be done after adjudication proceedings. All that Section 33 permitted was to call for information which information could be in respect of Indian currency which was the subject matter of infringement of any of the provisions of FERA. The respondent No.2 had called upon respondent No.3 Bank to produce not te amounts which had been advanced by the petitioner to the respondent No.3 for the purchase of the foreign exchange but the equivalent of the foreign exchange in Indian currency. Indeed, the respondent No.3 had been directed to pay the said amount either by Pay order or by cash. The amount directed to be paid over was not the amount advance for the purpose of purchase of the foreign exchange but its equivalent. Though the respondent No.3 Bank in compliance with the directions of the respondent No.2 had paid it was the amount of the petitioner. Since it was the petitioner who was aggrieved, he was entitled to an order of refund of that amount.
8. In regard tot he second impugned order viz., the order of adjudication dated 20th June 1988Mr. Andhyarjina submitted that it was not even the case of the respondent No. 2 that either the petitioner or the respondent No.3 Bank had fraudulently collected foreign exchange and not paid over the same to the bona fide passengers. The only fault found was that the FERT.S forms as well as A-2 forms for the release of foreign exchange under the F.T.S. scheme were not signed by the passengers themselves and instead they were signed by the employees of the petitioner. According to Mr. Andhyarjina, even though it is true that the said forms were not signed by the passengers but by the employees or representatives of the petitioner, the same had no bearing and did not infringe any of the provisions of FERA as long as it has not been shown that the foreign exchange obtained had not gone to the bona fide passengers but had been misappropriated. Singing of the forms by the passengers themselves was an inconsequential formality as the forms themselves permitted the signatures of the Head of the family or the leader of the group. In any event, according to Mr. Andhyarjina, the petitioner could not be held liable with the aid of S. 49 for aiding or abetting the respondent No.3 Bank, for contravening any of the provisions of FERA, Consequently, the sound impugned order was illegal and was liable to be quashed.
9. IN regard to the first impugned order dated the 8th Sept, 1986 it is apparent that the same was passed in exercise of the powers conferred by sub-s. (2) of s. 33. it could be passed for furnishing information in regard to the books and documents. The said order proceeds to state as under;-
"during the course of the inspection of M/s BCCI, conducted on 21st July, 1986 under s. 43(I0 of FERA, 1973 and during the course of the further investigation conducted under the provision of FERA 1973 it is observed that M/s. al Shaya Nasser Travels had paid amount totalling to Rs. 17,00,057/- by 4 separate cheques for the purchase of foreign currency under F.T.S since the amount is liable for confiscation for credit to the Central Government account in terms of the provisions of S. 63 of the Act . M/s. BCCI is hereby directed to surrender the said amount of Rs. 17,00,057/- to this office. The amount may be paid to this office by way of pay order in the name of "The Deputy Director of Enforcement". Bombay or by "Cash".
A bare reading of the aforesaid order makes it clear that what was sought to be done under the guise of elucidating information under s. 33(2), a device was evolved for surrender of the amount of Rs. 17,00,057/- which according tot he respondent No.2 was liable for confiscation. The amount was required to be paid either by Pay Order or by cash. Obviously this was not the amount that was utilised for the purchase of foreign exchange but an amount equivalent of that amount. An order directing surrender of such an amount after arriving at the finding that the same was liable for confiscation is clearly outside the purview of S. 33(2). The said amount, to the knowledge of the respondent No.2 belonged to the petitioner and yet this order was passed without any show cause notice to the petitioner and without he being heard In the matter. Hence, apart from the said order lacking the authority of law as being ultra vires the provisions of either S. 33(2) or any other provision of FERA, the same suffers from the infraction of the principle of natural justice. Hence the same is liable to be struck down.
10. In regard to the second impugned order dated the 20th June 1988, it may be convenient to reproduce the relevant findings arrived at by the respondent No.2 for passing the impugned order of confiscation:-.
"It is an admitted fact that FTS forms as well as A-2 forms were not signed by the applicants. And. In stead, these forms were signed by the employees of M/s. al Saya Nasser Travels. It has also been noticed from the seized A-2 forms that some of the A-2 forms were not signed at all. It has also been noticed that wherever the employees of M/s. Al Nasser Travels had signed FTS and A-2 forms or put thumb impression they had not done so on behalf of the original applicants, but in fact, they made signatures/thumb impressions so as to look as if they were of original applicants.
"The provisions of S. 6(4) & 6(5) read with S. 49 of the Foreign Exchange Regulation Act , 1973 very clearly indicate that the authorised dealer is to scrupulously follow the directions and guidelines of the Reserve Bank of India for issue of any Foreign Exchange and wherever, such guidelines have not been followed, it will be treated as contravention of the provisions of the Act and whosoever aids or abets in not following the directions, guidelines, etc. of the RBI while issuing the foreign exchange or doing any other foreign exchange dealings will be treated as aiding and abetting the authorised dealer in contravention of the provisions of the Act .
"As per the instructions contained in Ch. 16(A)-1 (1987 edition, Vol. No.1) of the Exchange Control Manual, it is very clear that every permit holder has to file A-2 forms also while applying for release of foreign exchange. Moreover, instructions for issue of foreign exchange under FTS clearly indicate that FTS forms are to be filled in and signed by the persons who has to travel. It can be signed by the head of the family or head of the group in the case of a family or group. Instructions relating to issue of foreign exchange under FTS also clearly says that it must be ensured that foreign exchange is released to the exact person on his personal application and identification. In these circumstances, it is very clear that in this case where some of the A-2 forms were not signed at all and FTS as well as A-2 forms were not signed by the applicants there is contravention of the provisions of S. 6(4) and 6(5) read with s. 49 of the Foreign Exchange Regulation Act , 1973................."
11.It has to be noted that it is not the case of the respondent No.2 either in the affidavit in reply to the original petition or in reply to the amended petition that either the petitioner or the respondent No.3 Bank has committed any defalcation in respect of foreign exchange. On the contrary, it is admitted that whatever foreign exchange was purchased in the name of the passengers of either of the two groups was either paid to them or was the subject matter of seizure at the hands of respondent No.2. in substance, the grievance of the respondent No.2 as against the petitioner and the respondent No.3 Bank is that the A-2 forms and the application forms F.T.S instead of being signed by the passengers themselves had been signed by the employees or representatives of the petitioner. This was undoubtedly so even on the admission of the petitioner. The question, therefore, that arises for consideration is whether the same would amount to a contravention of the provisions of s. 6(4) or 6(5) of the FERA as found in the impugned order. Though the impugned order mentions the infraction of sub-s. (5) of S. 6, in my view the said provision can have no application to the facts found by the respondent No. 2. It is nobody's case that the respondent No.3, the authorised dealer had required any person to make any declaration or to give information for the purpose of being satisfied that the transaction would not involve and was not designed for the purpose of contravention of any provision of the Act , Rule. Notification or direction or order. It is also nobody's case that any person refused to comply with such requirement or had made any unsatisfactory compliance. Hence, in my judgment, on a plain reading of sub-s. (5) of S. 6 the same is wholly inapplicable to the facts of the present case.
12.Sub-Section (4) of S. 6 requires an authorised dealer in all his dealings in foreign exchange to comply with such general or special directions or instructions as the Reserve Bank of India may from time to time think fit to give and an authorised dealer is forbidden from engaging in any transaction involving any foreign exchange which was not in conformity with the terms of his authorisation under the said Section. Now the question that arises for determination is whether the petitioner or his representatives by signing the A-2 forms and F.T.S. forms on behalf of the passengers had committed any breach of any general or special directions or instructions issued by the Reserve Bank. The further question which arises for consideration is whether the breach of the requirement that the A-2 forms or the F.T.S forms should be signed by the travellers themselves who propose purchase F.T.S. amounts to as infringement of sub-s. (4) of S. 6 so as to entail the penalty of confiscation under Section 63.
13. In the case of Vasudev Ramchandra v. Pranlal Jayanand reported in AIR 1974 SC 19728 the Supreme Court while considering a case regarding transfer of the shares of a Company observed (at p. 1735):
"After all, the observance of a form whether found in the Transfer of Property Act or in the Companies Act is meant to serve the needs of the substance of the transaction which were undoubtedly shown to have been completely fulfilled here. There is nothing in regulation 18 or anywhere else in our Company law to indicate that, without strict compliance with some rigidly prescribed form, the transaction must fail to achieve its purpose. The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed savours of archaic and outmoded jurisprudence".
14. In the case of Life Insurance Corporation v. Escorts Ltd. Reported in , it has been held that the Exchange Control Manual the provisions of which are alleged to have been infringed in the instant case is a sort of a guide-book for authorised dealers, money-changers etc. and is a compendium of collection, various statutory directions. Administrative instructions, advisory opinions, comments notes, explanations, suggestion, various statutory directions, administrative instructions, advisory opinions, comments notes, explanations, suggestions etc. hence it will not be possible to hold that any and every provisions contained in the Exchange Control Manual whether in the Exchange Control Manual whether of significance or otherwise is liable to be proceeded against under S. 64 of the FERA.
15. In the case of Dr. Vimla v. Delhi Administration reported the Supreme Court though dealing with an offence under the Indian Penal Code, observed:-.
"The accused purchased a motor car with her own money in the name of her minor daughter N. had the insurance policy transferred in the name of he minor daughter by signing her (minor's) name and also received compensation for the claims made by her in regard to the two accidents to the car. The claims were true claims and she received the moneys by signing in the claim forms and also in the receipts as N. the accused in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter. N was in fact either a benamidar for the accused, or her name was sued for luck or other sentimental considerations. On the facts found, either the accused got any advantage either pecuniary or otherwise by signing the name of N in any of the said documents nor the Insurance Company incurred any loss, pecuniary or otherwise, by dealing with the accused In the name of M. the Insurance company would not have acted differently even if the car had stood in the name of the accused and she had made the claims and received the amounts from the insurance company in her name.......
"Held, that the accused certainly was guilty of deceit, for though her name was V she signed in all the relevant papers as N and made the insurance company believe that her name was N, but the said deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company.......".
16. In the case of Kali Prasaid Banerjee v. Emperor reported in AIR 1915 Cal 786 (2), the Calcutta High Court held that the mere signing a telegram in another's name, where it is not shown to have been done with intent to injure him and where it does not actually injure him does not constitute the offence of forgery, even though the signature may have been made without the authority of such person.
17. In view of the above decisions it must be held that it is not each and every infringement of any and every direction and instructions of the Reserve Bank which can attract adjudication proceedings under FERA. To illustrate, if a wrong date is appended or a wrong address is inadvertently supplied to the application form, would that attract adjudication proceedings? I must hasten to add that I am not in the least certifying the acts on the part of the petitioner in forging the signatures of passengers. The question, however, it whether the petitioner by doing so has in substance committed any infraction or violation of any of the provisions of FERA. In answer to the question aire of the respondent No.2 to the various passengers. Each one of them replied that they had duly authorised the petitioner to sign their application forms and to apply for F. T. S. on their behalf,. If the petitioner, on the said authority, in order to obtain F.T.S for the out station passengers to facilitate their onward journey to Haj had signed on their behalf, in my view he had not committed infringement of any provisions of FERA so as to attract adjudication proceedings and the passing of the impugned order of confiscation. This is particularly so as it is common ground that the petitioner has not committed defalcation of any foreign exchange. In the case of Aparti Charan Ray. V. Emperor reported in (1930) 31 Cri. LJ 1126: (AIR 1930 Patna 271) where the husband of a woman who had given him general permission to file papers in Courts on her behalf, forged her signature in a plant to save the suit from becoming barred by limitation and filed it in Court on the last day of limitation, it was held that the husband was not guilty of forgery as there was no intention to defraud anybody, though his Act was an improper one. In order to constitute in point of law and intent to defraud, there must be a possibility of some person being defrauded by the forgery, or there must be a possibility of some person being not only deceived but injured by the forgery.
18. It must be remembered that proceedings of adjudication under FERA are in the nature of quasi-criminal proceedings and unless the infringement is absolute, it would not be permissible to take resort to such proceedings. In the case of Shanti Prasad Jain v. Director of Enforcement , Foreign Exchange Regulation Act , the Supreme Court while dealing with FERA was pleased to observe that it is only right to observe that the proceedings under the Act are quasi-criminal in character and it is the duty of the prosecutor to make out beyond all reasonable doubt that there has been a violation of the law.
19. In the case of Union of India v. Shreeram Durga Prasad (P) Ltd. Reported in , the Supreme Court in a challenge to a show cause notice under FERA observed as under (at page 1612);-
"It we are to hold that every declaration which odes not state accurately the fully export value of the goods exported is a contravention of the restrictions imposed by S. 12(I0 then all exports on consignment basis must be held to contravene the restrictions imposed by S. 12(I0. Admittedly S.12(I) governs every type of export. Again it is hard to believe that the legislature intended that any minor mistake in giving the full export value should be penalised in the manner provided in Sec. 23A. the wording of S.12 (I) does not support such a conclusion. Such a conclusion does not accord with the purpose of Section 12(1).
"It is true that the regulations contained in the Act are enacted in the economic and financial interest of this country. The contravention of those regulations, which we were told are widespread are affecting vital economic interest of this country. Therefore the rigour and sanctity of those regulations should be maintained but at same time it should not be forgotten that S.12(I) is a penal Section".
20. It is apparent from the aforesaid decisions that it is not each and every infringement of FERA but it is only those which result in the infringement of any provision, directions or instructions of some matter or substance that would attract adjudication proceedings. Since the signing of the application forms by the employees or the representatives of the petitioner has not resulted in any defalcation of foreign exchange or infringement of any matter of substance, in my judgment, the proceedings for adjudication and the findings arrived at there in culminating in the order of confiscation are bad in law and are liable to be struck down.
21. Mr. Bhatia, the learned Counsel appearing on behalf of the respondent No. 1 and 2 strenuously resisted the petition by vehemently contending that there is an alternate, efficacious remedy of an appeal open to the petitioner under S. 52 and a further appeal to this Court under S. 54. The impugned order of confiscation itself points out the filed under Art. 226 of the Constitution is not maintainable. In my judgment, there is no merit in the aforesaid submission. In the case of Ram and Shyam Co.v. State of Haryana , it has been observed;_ "The rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion, a self-imposed restrain on the court, rather than a rule of law. It does not oust the jurisdiction of the Court. Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.
22. IN the case of Tata Engineering v. Asstt. Commr, of Commercial Taxes , it was held that the jurisdiction of the High Court under Art. 226 of the Constitution is extra-ordinary and has to be used sparingly. In spite of the very wide terms in which this jurisdiction is conferred there are certain recognised limitations on this power. The jurisdiction is not appellate and it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these, there are certain exceptions. One such exception is where action is being taken under an invalid law, or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Art. 226 were not allowed to be invoked.
23. IN the case of Union of India v. Tarachand Gupta & Bros, , the Supreme Court while dealing with the jurisdiction of a civil court in proceedings under Cl. 3 of the Imports Control Act 1955, was pleased to observe (at p. 1565);-
"The words, 'a decision or order passed by an officer of Customs under this Act ' used in S. 118 of the Sea Customs Act must mean a real and not a purported determination. A determination which takes into consideration factors which the officers has no right to take into account, is no determination. This is also the view taken by courts in England. In such cases the provision excluding jurisdiction of civil courts cannot operate so as to exclude an inquiry by them. In Anisminic Ltd. V. The Foreign Compensation Commission (1969) 1 All ER 208 Lord Reid at pages 213 and 214 of the Report stated as follows;
"It has something been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirement of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to Act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly'.
To the same effect are also the observations of Lord Pearce at page 233, R. v. Fulham, Hammersmith and Kensington Rent Tribunal (1953) 2 All Er 4, it yet another decision of a tribunal properly embarking on an enquiry, that is, within its jurisdiction, but at the end of it making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case.
"The principle thus is that exclusion of the jurisdiction of the civil courts Is not to be readily inferred. Such exclusion, however, is inferred where the statute gives finality to the order of the tribunal on which It confers jurisdiction and provides for adequate remedy to do what the courts would normally do in such a proceedings before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal ahs not acted in conformity with the fundamental principles of judicial procedure. The word 'jurisdiction' has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several aspects one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act .. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act and therefore, in excess of its jurisdiction."
24. In the case of East India Commercial Co. v. Collector of Customs while dealing with the provisions of the Imports and Exports (Control), Act 1947 and the Sea Customs Act , 1878 it was found that the Customs Authorities had no jurisdiction to initiate proceedings or make an inquiry under the said provisions in respect of certain acts alleged to have been done by the appellants. The respondents, Customs authorities, it was held, could most certainly be prohibited from proceedings with the same and hence a writ petition was maintainable. It was further held that a Tribunal could not ignore the law declared by the highest Court in the State and initiate proceedings in direct in the State and initiate proceedings in direct violation of the law so declared.
25. In view of the aforesaid decisions and in view of my findings that the proceedings limited by the respondent No.2 for adjudication are without the basis of law and without jurisdiction, the same will have to be struck down,. It may be noted that in the case of Union of India v. Shreeram Durga Prasad (P) Ltd. Reported in in similar circumstances the Supreme Court had interfered at the stage of issue of the show cause notice and had struck it down.
26. Mr. Bhatia further submitted that the petitioner was not an authorised travel agent. He was not entitled to engage himself in the business of purchasing tickets or procuring foreign exchange as this could be done only by travel agents who have bee duly authorised in that behalf. The petitioner was not armed with nay Power of Attorney on behalf of the passengers entitling him to sign on their behalf either the A-2 or the F.T.S. forms. The petitioner had indulged himself in an illegal trade and hence this is not a fit case for involking interference in the extra-ordinary discretionary jurisdiction under Art. 226 of the Constitution of India. In my judgment, there is no merit in the aforesaid contention. The petitioner has not been proceeded on this ground and no case has been made out on that basis. It would not be permissible to refuse to entertain the present petition on grounds which were not the subject matter of the inquiry or the charge before the respondent No.2. Since I am of the view that the impugned proceedings lack the very basic jurisdiction, it would be unfair not to exercise the jurisdiction, it would be unfair not to exercise the jurisdiction under Art. 226 and to leave the petitioner with the departmental appeal which cannot be equated with the expeditions remedy of a writ petition. It needs to be observed that Mr. Parkh, the learned Counsel appearing on behalf of the respondent No. 3 has supported the petitioner and adopted the submissions advanced by Mr. Andhyarujina on behalf of the petitioner. In this view of the matter. In find the aforesaid submissions of Mr. Bhatia devoid of any merit.
27. Mr. Bhatia finally submitted that ever if the order of confiscation is to be set aside this is not a fit case wherein the petitioner is entitled to an order of refund in his favour. Accordingly to Mr. Bhatia, the amount which has been the subject matter of confiscation does not belong to the petitioner but to the 267 passengers. If at all anybody is entitled to refund, it would be the passengers and not the petitioner. In my judgment, there is no merit in this contention as the said passengers of the second group travelled without paying the petitioner the ticket amount. The amount of the ticket money has this been paid by the petitioner. The amounts which were advanced by the passengers towards purchase of foreign exchange were paid by the petitioner to the respondent No.3 Bank which were directed to be paid by the respondent No.3 in its equivalent rupees under the first impugned order. It would, therefore, not be possible to hold that the amount which is the subject matter of confiscation does not belong to the petitioner but to the passengers.
28. In this view of the matter, it will have to be held that both the impugned orders, viz. Order dated 8th Sept. 1986 and 20th June 1988 are bad in law and the same are liable to be struck down. Rule made absolute in terms of prayer clause (a). in regard to the prayer cl.(b) since I have found that the petitioner has been illegally and unjustly deprived of his amount. He will be entitled to the refund along with interest at 12% per annum. The petitioner will be entitled to costs of this petition from the respondents No.1 and 2 Mr. Bhatia prays that my above order be stayed for a period of eight weeks in order to enable him to prefer an appeal. Mr. Andhyarujina strongly objects by contending that the petitioner has been unjustly deprived of his amount for over two years driving him out of business. In my view, stay of my order for a period of four weeks would meet the ends of justice. My order to stand stayed for a period of four weeks from today.
29. Order accordingly.