1. ' The petitioner has impugned the order dated 22-6-2010 passed by the Joint Director of Adjudication Foreign Exchange Adjudication Court, State Bank of Pakistan. Notices were issued and objections were raised as to the maintainability of this petition before this Court. Essentially the contention of learned counsel for the respondent are that Appeal against the order of the adjudicating authority is provided under section 23C of the Foreign Exchange Regulation Act 1947, which provides inter alia any person aggrieved by any order of the Adjudicating Officer made under subsection (4) or subsection (5) or subsection (6) of section 23B may, within thirty days of such order, prefer an appeal to the Appellate Board within whose jurisdiction the order is passed; provided that no appeal shall lie from an interlocutory order which does not dispose of the entire case before the Adjudicating Officer; Provided further that the Appellate Board may entertain an appeal after the expiry of the said period of thirty days but not later than sixty days from the date of the aforesaid order if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
2. ' When learned Counsel for the petitioner confronted, it was contended that indeed appeal is provided but the Appellate Board, is not functional for quite some time. Learned counsel for the respondents contends that presently the Members of the Board have not yet been nominated. It is however, stated that the Appellate Board is already established, the Registrar is functioning and office is receiving appeals regularly' therefore, this petition is not maintainable to circumvent the limitation.
3. ' We have heard learned counsel and perused the record.
4. Indeed the remedy of appeal is provided and the writ jurisdiction cannot be used as substitute of the Appeal or to circumvent limitation provided for the Appeal. Indeed in case where either the Tribunal or Court or Forum are not established as provided under the Act and/or Courts are lying vacant it cannot be said that the parties are remediless and would be non-suited on account of action for not nominating Presiding Officer or Member of the adjudicating forum. However, where such tribunal exists and is functional though member is not nominated the proper course is to file appeal before the forum so provided under the law and in case it is non-functional on account of non-availability of the Member then such party may always approach and invoke the writ jurisdiction to seek any interlocutory relief.
5. Under the circumstances, we would dispose of this petition. Let the petitioner file an Appeal before the Appellate Board in terms of subsection (3) to section 23C of the Foreign Exchange Regulation Act, 1947 along with Application for condonation of delay. It is expected that the Board shall decide condonation application sympathetically in terms of section 14 of Limitation Act which course is conceded by the learned counsel for the respondents. It is further stated by the learned counsel for the petitioner that since Tribunal is not functioning and notices are being regularly issued for recovery of the impugned demand therefore, this Court may make observation that the demand, money may not be insisted till such time the Tribunal or Appellate Board is functional. Learned Counsel for the respondents conscious of the fact that non-availability of the Tribunal is beyond the control of the petitioner and or the respondents. In all fairness the demand may not be pressed into service till such time the Appellate Board is functional and petitioner is able to approach to the Tribunal to seek any order on his application. Such statement is taken on record and it is expected that the demand will not be pressed into service till. Tribunal is functional. Petition in terms of the above is disposed of.
6. ' Let copy of this order is forwarded to Secretary, Law and Justice, Government of Pakistan to ensure that vacancy in Foreign Exchange Appellate Tribunal are filled up without delay. Learned Registrar to follow up the matter on administrative side and put up report in case vacancy are not filled, up in four weeks from today.
7. ' Learned counsel for the petitioner undertakes to furnish security to the extent of the amount adjudicated against the petitioner before the Registrar of the Appellate Board within three weeks from today.