2010 (4) TMI 432 - SC - FEMA

Writ petitions not maintainable when efficacious remedy exists under Section 35 of FEMA; cannot bypass statutory appeal route

RAJ KUMAR SHIVHARE Versus ASSTT. DIRECTOR, DIRECTORATE OF ENFORCEMENT

SC held the writ petition was not maintainable where an efficacious statutory remedy existed under Section 35 of FEMA. Allowing a writ despite ... Territorial Jurisdiction of the High Court - Interlocutory order - interpretation of Section 35 - HELD THAT:- If the appellant in this case is allowed to file a writ petition despite the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fees or deposit of some amount of penalty or fulfillment of some other conditions for entertaining the appeal - It is obvious that a writ court should not encourage the aforesaid trend of by-passing a statutory provision. - liability of the appellant is not created under any common law principle but, it is clearly a statutory liability and for which the statutory remedy is an appeal under Section 35 of FEMA, subject to the limitations contained therein. A writ petition in the facts of this case is therefore clearly not -maintainable. Issues Involved:1. Territorial Jurisdiction of the High Court2. Maintainability of Writ Petition under Article 226 against an order of the Tribunal3. Interpretation of Section 35 of the Foreign Exchange Management Act (FEMA)Issue-wise Detailed Analysis:1. Territorial Jurisdiction of the High Court:The High Court of Delhi dismissed the writ petition on the grounds of lack of territorial jurisdiction. The court relied on the decision in Ambica Industries v. Commissioner of Central Excise, interpreting Section 35 of FEMA. The court reasoned that a High Court must consider whether the person, authority, or government is located within its territories or if a significant part of the cause of action has arisen within its territories. The court emphasized that allowing litigants to choose any High Court based on convenience would lead to forum shopping and judicial anarchy.2. Maintainability of Writ Petition under Article 226 against an order of the Tribunal:The Supreme Court questioned the maintainability of the writ petition against an order of the Tribunal in view of Section 35 of FEMA. The appellant argued that the writ jurisdiction of the High Court is part of the basic structure of the Constitution and cannot be ousted by Section 35 of FEMA. However, the Supreme Court held that FEMA is a complete code in itself, providing a comprehensive network of provisions for adjudication and appeal. The court emphasized that when a statutory forum is created for redressal of grievances, a writ petition should not be entertained, ignoring the statutory dispensation. The court cited several precedents, including Thansingh Nathmal and others v. The Superintendent of Taxes, Dhubri, and Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and Another, to support its view that the statutory remedy must be availed of before seeking discretionary relief under Article 226.3. Interpretation of Section 35 of FEMA:Section 35 of FEMA allows an appeal to the High Court from 'any decision or order' of the Appellate Tribunal on a question of law. The appellant contended that this section only applies to final orders. However, the Supreme Court clarified that the word 'any' in this context means 'all,' and thus, appeals can be filed against any order or decision of the Appellate Tribunal on a question of law. The court referenced various judgments to support this interpretation, including Beckett v. Sutton, Ellerine Bros. (Pty) Ltd. and Another v. Klinger, and Satyanarain Biswanath v. Harakchand Rupchand. The court also noted that other statutes, such as the Family Courts Act, 1984, and the Code of Civil Procedure, explicitly limit appeals to final orders, whereas FEMA does not impose such a limitation.Conclusion:The Supreme Court dismissed the appeal, holding that the writ petition was not maintainable as the appellant had an efficacious remedy under Section 35 of FEMA. The court directed that the appellant could file an appeal before the appropriate High Court within thirty days, and the appellate forum should consider the question of limitation sympathetically, given that the appellant was bona fide pursuing his case under Article 226 of the Constitution. The parties were left to bear their own costs.