IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1628 OF 2008 WRIT PETITION NO.1628 OF 2008 WRIT PETITION NO.1628 OF 2008 Jayantilal Harakchand & Co. & Ors. ..Petitioners. V/s. Union of India & Ors. ..Respondents. Mr.Mathew Nedumpura for petitioners. Mr.R.V.Desai, senior Advocate with A.S.Rao for respondent Nos.1 to 4. Mr.B.B.Saraf i/b. M.K.Ambalal & Co. for respondent No.5. CORAM : D.K. DESHMUKH AND CORAM : D.K. DESHMUKH AND CORAM : D.K. DESHMUKH AND J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. J.P. DEVADHAR, JJ. DATED : 7TH AUGUST, 2008. DATED : 7TH AUGUST, 2008. DATED : 7TH AUGUST, 2008. P.C.:- P.C.:- P.C.:- 1. By an adjudication order dated 20th April, 2005 the Additional Director, Enforcement Directorate had imposed a penalty of Rs.30 lakhs upon the petitioners inter alia on the ground that the petitioners are guilty of not realising export outstanding in foreign exchange amounting to Rs.33,19,020.33 as per the statement given by the bankers of the petitioners. 2. Challenging the aforesaid order, the petitioners filed an appeal and by an order dated - = : 2 : = - 27th July, 2006 and the appellate authority directed the petitioners to deposit 50% of penalty amount. The said order was neither challenged nor complied. As the petitioners failed to comply with the order of predeposit, the appeal filed by the petitioners was dismissed on 3/1/2007. Challenging the aforesaid order, the petitioners filed Fera Appeal No.77 of 2007 which was dismissed on 26th October, 2007. It appears that thereupon the petitioners filed a Writ Petition under Article 32 of the Constitution before the Apex Court which was disposed off on 2/5/2008 by observing that it was not a fit case for exercise of extra ordinary original jurisdiction under Article 32 of the Constitution. However, it was clarified that disposal of the said petition will not come in the way of the petitioners in taking appropriate proceedings in accordance with law. 3. Instead of taking appropriate proceedings, the petitioners have filed the present Writ petition to invoke extra-ordinary original jurisdiction of this Court under Article 226 of the Constitution. 4. On perusal of the reliefs sought in the Writ Petition, it is seen that the petitioners have sought to challenge the constitutional validity of - = : 3 : = - the Constitution (Thirty Ninth) Amendment Act, 1975 as also various provisions of the Foreign Exchange Regulation Act, 1973 (‘FERA’ for short) and the Foreign Management Act, 1999 (‘FEMA’ for short), writ of certiorari for quashing the adjudication order dated 20/4/2005 and also the demand notice issued under section 178 of the Maharashtra Land Revenue Code, 1966 in implementation of the adjudication order dated 20/4/2005. 5. In our opinion, the petition is wholly misconceived and has been filed in gross abuse of the process of law. Having resorted to the appellate remedy provided under the Act against the adjudication order and having failed in that appeal it is not open to the petitioners to challenge various provisions of the Act especially when the appeal has not been dismissed on merits but dismissed on the ground that the petitioners have failed to comply with the order of predeposit as contemplated under the Act. 6. The Apex Court in the case of Gujarat Agro Gujarat Agro Gujarat Agro Industries Co.Ltd. V/s. Municipal Corporation Industries Co.Ltd. V/s. Municipal Corporation Industries Co.Ltd. V/s. Municipal Corporation reported in (1999) 4 SCC 468 (1999) 4 SCC 468 (1999) 4 SCC 468 while considering a similar provision contained in Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, - = : 4 : = - 1949 had held that the right to appeal being a statutory right, it is for the legislature to decide whether to make the right subject to any condition or not. The Apex Court further held that any challenge to the constitutional validity of a provision for predeposit before entertaining an appeal on the ground that onerous conditions have been imposed and right to appeal has become illusory must be negatived and such a provision cannot be said to be ultra vires Article 14 of the Constitution. 7. Therefore, if according to the petitioners, the adjudication order is a nullity and the demand is unenforceable then the proper course is to agitate the issue before the authority enforcing the demand and not to seek writ of certiorari for quashing various provisions of FERA & FEMA. 8. In the result, the petition is dismissed with costs quantified at Rs.15,000/-. (D.K.DESHMUKH, J.) (D.K.DESHMUKH, J.) (D.K.DESHMUKH, J.) - = : 5 : = - (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.) (J.P. DEVADHAR, J.)