Raj Kumar Shivhare vs Asst.Dir.Directorate Of Enfort.& Anr

3. A Writ Petition was filed challenging the order dated 17.7.2008 of the Appellate Tribunal for Foreign Exchange, Janpath, New Delhi, (hereinafter `the Tribunal'), on various grounds with which this 1 Court is not concerned. By that order, the Tribunal refused to dispense with the pre-deposit of penalty by the appellant and the concluding portion of that order is:

4. The facts of the case in brief are as follows:

5. As the charges were proved against him, a penalty of Rs.2 crores was imposed on him and the confiscated money was disposed of according to Section 13(2) vide order dated 29.02.2008.

6. On appeal to the Appellate Tribunal under Section 19(2) of the Act, the Tribunal passed the order dated 17.7.2008, the concluding portion whereof is quoted above.

(Emphasis added)

41. In view of such consistent opinion of this Court over several decades we are constrained to hold that even if High Court had territorial jurisdiction it should not have entertained a writ petition which impugns an order of the Tribunal when such an order on a question of law, is appealable before the High Court under Section 35 of FEMA.

43. In the instant case none of the aforesaid situations are present.

44. Therefore, principle laid down in the Ratan's case (supra) applies in the facts and circumstances of this case. 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. (See para 13 at page 408 of the report). It is obvious that a writ court should not encourage the aforesaid trend of by-passing a statutory provision. 21

254. That was a decision on the question of "part of the cause of action" under Article 226 (2) of the Constitution. Since this Court is of the opinion that the writ petition itself is not maintainable for the reasons discussed above, the question of part of cause of action is not relevant. So the aforesaid decision is not attracted to the points in issue in this case.

49.For the reasons discussed above, this Court is of the opinion a writ petition is not ordinarily maintainable to challenge an order of the Tribunal. We, therefore, dismiss the appeal, of course for reasons which are different from the ones given by the High Court in dismissing the writ petition.

50.In view of this Court's jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to Section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will consider the question of limitation sympathetically having regard to the provision of Section 14 of the Limitation Act and also having regard to the fact that the appellant was bona-fide pursuing his case under Article 226 of the Constitution before the Delhi High Court and then its appeal before this Court.

51.With the aforesaid direction, the appeal is dismissed. The parties are left to bear their own costs.