FEMA show cause notices upheld as petitioners must exhaust statutory appeal remedies under Sections 19(1) and 35 first

The HC dismissed writ petitions challenging FEMA show cause notices, holding that alternative appellate remedies under Sections 19(1) and 35 of FEMA precluded writ jurisdiction. The court rejected natural justice violation claims, finding that subordinate officers' counter-affidavits did not bind the adjudicating authority or demonstrate pre-judgment. Regarding delay in issuing notices, the court ruled this was a factual matter for the adjudicating authority to determine rather than writ jurisdiction. The court clarified that omission of Section 6(3)(b) did not invalidate notices as the provision remained applicable to past actions. Petitioners were directed to exhaust statutory appeal mechanisms before approaching the HC.

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The legal judgment from the Madras High Court involves multiple writ petitions challenging a complaint and subsequent show cause notice issued under the Foreign Exchange Management Act (FEMA) and related regulations. The core issues considered by the Court include the alleged contravention of FEMA provisions by the petitioners, the delay in initiating proceedings, the legal standing of the omitted provisions of FEMA, and the maintainability of the writ petitions in light of available alternative remedies.

Issues Presented and Considered:

The Court examined several key issues:

• Whether the show cause notice issued for alleged contraventions of FEMA provisions that occurred between 2009-2011 was invalid due to an unreasonable delay.
• Whether the omission of Section 6(3)(b) of FEMA by the Finance Act of 2015 invalidated the show cause notice issued for alleged violations of that section.
• Whether the adjudicating authority had pre-determined the case against the petitioners, thus violating principles of natural justice.
• Whether the writ petitions were maintainable given the existence of alternative remedies under FEMA.

Issue-wise Detailed Analysis:

Delay in Initiating Proceedings:

• The petitioners argued that the delay of nearly ten years in issuing the show cause notice was unreasonable, relying on precedents that emphasize timely initiation of proceedings.
• The Court noted that while FEMA does not prescribe a time limit for initiating action, proceedings should commence within a reasonable time. However, what constitutes a reasonable time is a question of fact to be determined by the adjudicating authority.
• The Court concluded that the question of delay should be addressed during the adjudicatory process, not in the writ jurisdiction.

Omission of Section 6(3)(b) of FEMA:

• The petitioners contended that the omission of Section 6(3)(b) by the Finance Act of 2015 rendered the show cause notice without legal basis.
• The Court examined the legal framework, particularly the applicability of Section 6 of the General Clauses Act, which addresses the effect of repeals. The Court referenced the Supreme Court's interpretation that the term "repeal" includes "omission," thus preserving the applicability of the omitted provisions for past actions.
• The Court rejected the argument that the omission invalidated the show cause notice, citing the saving provisions in the Finance Act of 2015 and the Supreme Court's rulings in Fibre Boards and subsequent cases.

Alleged Bias and Violation of Natural Justice:

• The petitioners argued that the adjudicating authority had already made up its mind, as evidenced by the counter affidavit filed by the respondents, thus violating principles of natural justice.
• The Court found no evidence of bias, noting that the counter affidavit was not filed by the adjudicating authority and that the adjudication process included opportunities for appeal, ensuring fairness.
• The Court emphasized that the adjudicating authority's decision is subject to appeal, further safeguarding against bias.

Maintainability of Writ Petitions:

• The Additional Solicitor General argued that the writ petitions were not maintainable due to the availability of alternative remedies under FEMA, including appeals to the Appellate Tribunal and the High Court.
• The Court acknowledged that while alternative remedies do not bar writ jurisdiction, they should be exhausted unless exceptions apply, such as violation of fundamental rights or lack of jurisdiction.
• The Court determined that the petitioners did not demonstrate any exception to warrant bypassing the alternative remedies, thus upholding the preliminary objection regarding maintainability.

Significant Holdings:

The Court made several key determinations:

• The omission of Section 6(3)(b) of FEMA does not invalidate the show cause notice, as the omission is considered a repeal, preserving the provision's applicability to past actions.
• The delay in initiating proceedings is a factual issue to be addressed by the adjudicating authority, not in writ jurisdiction.
• The petitioners' claims of bias and violation of natural justice were not substantiated, given the procedural safeguards and appeal opportunities available under FEMA.
• The writ petitions were dismissed due to the availability of effective alternative remedies, with the Court emphasizing the importance of exhausting statutory appeals.

The Court concluded by dismissing the writ petitions, granting the petitioners the opportunity to file explanations before the adjudicating authority within a specified timeframe, and emphasizing that any decision by the authority is subject to appeal and scrutiny by higher courts.

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