Pre-deposit waiver discretion must be exercised judicially; writ interference is justified when undue hardship is shown and material is lacking.

A writ petition challenging refusal to dispense with pre-deposit was held maintainable because the statutory appeal remedy did not extend to an order made under the tribunal's discretionary deposit-waiver power. The court also stated that discretion under the enabling provision must be exercised judicially on relevant material and not arbitrarily. On the facts, the record did not support the finding that the petitioner could deposit the full amount, and the ex parte nature of the original order, seizure of funds, and other material indicated undue hardship. The refusal to waive deposit was therefore interfered with and modified, with a reduced pre-deposit ordered.

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Issues: (i) whether the writ petition challenging the appellate tribunal's refusal to dispense with pre-deposit was maintainable in view of the statutory appeal remedy; and (ii) whether the petitioner had made out a case for dispensation of the full pre-deposit and substitution of a lesser deposit under the enabling provision.

Issue (i): Whether the writ petition was maintainable in view of the statutory appeal remedy

Analysis: The statutory appeal under Section 54 of the Foreign Exchange Regulation Act, 1973 lay only against decisions or orders passed under sub-sections (3) or (4) of Section 52, whereas the impugned order related to refusal to exercise discretion under Section 52(2). The alternative-remedy objection based on decisions under other enactments was distinguished because the present statute itself conferred a distinct power on the appellate tribunal to dispense with deposit, and the challenge was to the manner in which that discretion was exercised.

Conclusion: The writ petition was maintainable.

Issue (ii): Whether the petitioner had made out a case for dispensation of the full pre-deposit and substitution of a lesser deposit under the enabling provision

Analysis: Section 52(2) of the Foreign Exchange Regulation Act, 1973 conferred discretion on the tribunal to dispense with deposit where undue hardship was shown, but that discretion had to be exercised judicially and not arbitrarily. The record did not disclose material to support the finding that the petitioner had sufficient means to deposit the entire penalty. The ex parte nature of the original order, the seizure of a substantial amount, and the absence of reliable material negativing hardship justified interference.

Conclusion: The petitioner was entitled to conditional relief, and the full pre-deposit was reduced to a lesser amount.

Final Conclusion: The tribunal's refusal to waive pre-deposit was interfered with and modified, with the appeal to proceed upon deposit of a reduced sum, thereby granting substantive relief to the petitioner.

Ratio Decidendi: Where a statute confers discretion to dispense with pre-deposit on proof of undue hardship, the authority must exercise that discretion on relevant material and not arbitrarily, and a writ court may interfere where the refusal is unsupported by material and results in manifest hardship.

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