TMI Blog2010 (4) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - 3221 of 2010 - - - Dated:- 12-4-2010 - G.S. Singhvi and Asok Kumar Ganguly, JJ. S/Shri Vijay Hansaria, Sr. Advocate, Ms. Sneha Kalita, R.K. Sinha and D.K. Sinha, Advocates, with him, for the Appellant. S/Shri P.P. Malhotra, ASG, Ms. Ranjana Narayan and B.K. Prasad, Advocates, with him, for the Respondent. [Judgment per : Asok Kumar Ganguly, J.]. - Leave granted. 2. This appeal arises out of the Division Bench judgment of the High Court of Delhi in WP No. 6527/2008 filed by the appellant-Rajkumar Shivhare. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any Court of the country, brooks no cavil. This does not, however, inexorably lead to the consequence that a litigant can pick and choose between any Court as per his caprice and convenience..." 11. It held that in exercising its powers under Article 226, a High Court must consider that the person, Authority or Government is located within its territories or a significant part of the cause of action has arisen within its territories. It referred to Ambica Industries (supra) again where this Court held that - ".....the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 Sections. A rule styled as the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 have been framed in exercise of powers under Section 46 read with sub-section (1) of Section 16, sub-section (3) of Section 17 and sub-section (2) of Section 19 of FEMA. 19. It is thus clear that Chapter V of FEMA, read with the aforesaid rules, provides a complete network of provisions adequately structuring the rights and remedies available to a person who is aggrieved by any adjudication under FEMA. 20. The statutory scheme under Section 34 of FEMA is to exclude the jurisdiction of the Civil Court in express terms. Section 35, which calls for interpretation in this case, runs as follows : "35. Appeal to the High Court.- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order : Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'any' 'order' or 'decision' of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word 'any' would mean 'all'. 25. Justice Chitty in Beckett v. Sutton (51 Law Journal 1882 Chancery Division 432) had to interpret "any decree or order" in Section 1 of the Trustee Extension Act, 1852 and His Lordship held :- "..the words of the section are as wide as possible, and appear to me to apply adopting the language the Legislature has used - to "any decree or order" by which the Court directs a sale". 26. The word 'any dispute' is somewhat akin to 'any order' or 'any decision'. Any dispute, occurring in Section 51 of Arbitration Act 1975, has been interpreted to have a wide meaning to cover all situations where one party makes a request or demand and which is refused by the other party [See Ellerine Bros. (Pty) Ltd. and Another v. Klinger, 1982 (2) AER 737] . 27. Justice Bachawat, while in Calcutta High Court, in the case of Satyanarain Biswanath v. Harakchand Rupchand, reported in AIR 1955 Calcutta 225, interpreted the word 'any' in Rule 10 of Bengal Chamber of Commerce, Rules of the Tribunal of Arbitration. Construing the said rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) : PROVIDED that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991] (3) Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.] (Emphasis supplied) 31. Similarly, under Section 104 of the Code of Civil Procedure read with Order XLIII Rule 1 thereof, it has been indicated from which interlocutory order an appeal will lie. But it has been made clear that no Second Appeal from such order will lie [See Section 104 Sub-section (2) of the Code]. But in Debt Recovery Tribunal Act, as in FEMA, an appeal lies from an interlocutory order and this has been made clear in Section 20(1) of the Act. 32. By referring to the aforesaid schemes under different Statutes, this Court wants to underline that the right of appeal, being always a creature of a Statute, its nature, ambit and width has to be determined from the Statute itself. When the language of the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." (Emphasis added) 37. The decision in Thansingh (supra) is still holding the field. 38. Again in Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and Another [AIR 1983 SC 603] in the background of taxation laws, a three judge Bench of this Court apart from reiterating the principle of exercise of writ jurisdiction with the time-honoured self imposed limitations, focused on another legal principle on right and remedies. In paragraph 11, at page 607 of the report, this Court laid down : "It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [1859] 6 C.B (NS) 336 at page 356 in the following passage : "There are three classes of cases in which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 42. Learned counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan v. Pandit Durga Prasad (D) By Lrs. and Ors. - (2003) 5 SCC 399. Learned counsel relied on paragraph (13) of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a Statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. However, the aforesaid principle is subject to one exception, namely, where there is a complete lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal acted under a provision of law which is declared ultra vires. In such cases, notwithstanding the existence of such a tribunal, the High Court can exercise its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 48. The decision in Ambica Industries (supra) is also on the question of part of cause of action under Article 226 (2) of the Constitution of India. For the aforesaid reasons, the decision in Ambica Industries (supra) is not of much relevance in the facts of the case in hand. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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