REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3221 OF 2010 (Arising out of SLP (Civil) No.28877 of 2008)

Raj Kumar Shivhare ..Appellant(s)

Versus  

Assistant Director, Directorate of Enforcement & Another     ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. 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 with which this  

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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:  

“…Therefore,  the  application  for  dispensation of pre-deposit of penalty is  dismissed and rejected but the appellant  is  permitted  to  deposit  full  amount  of  penalty within thirty days from the date  of receipt of the order failing which the  appeal will be dismissed on this ground  alone. The appeal is fixed for hearing on  4th September, 2008”.

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

The appellant, along with another person, were  

issued a notice dated 12.1.2005 under Section 3(c) of  

the Foreign Exchange Management Act, 1999 (FEMA) for  

receiving  unauthorized  payments  worth  Rs.5  crores  

under instructions from persons living outside India  

in  connection  with  his  illegal  cricket  betting  

operation. He was also asked to explain why the amount  

of  Rs.1  lac,  confiscated  during  search  from  his  

residence, should not be credited to the account of  

the Central Government under Section 13(2) of FEMA,  

1999.

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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.  

7. Then, a writ petition came to be filed challenging  

the order dated 17.7.2008.

8. The High Court, without going into the merits of  

the  petition,  accepted  the  preliminary  objection  

raised by the respondent that the High Court of  

Delhi  did  not  have  territorial  jurisdiction  to  

decide the matter.  High Court of Delhi rejected  

the writ petition on that ground and gave liberty  

to approach the appropriate High court.  

9. While dismissing the writ petition, on the ground  

that it lacked territorial jurisdiction, the High  

Court relied on the decision of this Court rendered  

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in  Ambica  Industries vs.  Commissioner  of  Central  Excise, (2007) (6) SCC 769, on the interpretation  of Section 35 of FEMA.

10.The High Court in its judgment gave the following  

reasoning:

”The position is analogous to that of  the  Union  Government.  The  statement  that  the  Union  Government  is  located  throughout  every  part  of  Indian  Territory and hence can be sued 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  

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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  order  of  assessment made at Bombay, may invoke  the jurisdiction of the Allahabad High  Court to take advantage of the law laid  down by it and which might suit him and  thus he would be able to successfully  evade  the  law  laid  down  by  the  High  Court at Bombay. ...  

It  would  also  give  rise  to  the  problem  of  forum  shopping.  ....For  example,  an  assessee  affected  by  an  assessment order in Bombay may invoke  the  jurisdiction  of  the  Delhi  High  Court to take advantage of the law laid  down by it which may be contrary to the  judgments of the High Court of Bombay”.

12.High Court also relied on the Explanation (a) to  

Section 35 of FEMA, which states that “High Court”,  

to which an appeal from an order of the Appellate  

Tribunal under Section 35 of the Act lies, means  

“the High Court within the jurisdiction of which  

the aggrieved party ordinarily resides or carries  

on business or personally works for gain”.  

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13.Though High Court dismissed the writ petition on  

the issue of territorial jurisdiction, it missed a  

rather  fundamental  issue  which  is  discussed  

hereunder.  

14.At  the  commencement  of  the  hearing,  this  Court  

questioned  the  very  maintainability  of  the  Writ  

Petition against an order of the Tribunal in view  

of the provisions of Section 35 of FEMA.  

15.The Learned Counsel for the appellant sought to  

answer this query by contending that (a) the remedy  

under Section 35 of FEMA is only against a final  

order, (b) this question was not raised before the  

High Court, (c) the writ jurisdiction of the High  

Court  is  part  of  the  basic  structure  of  the  

Constitution and such jurisdiction cannot be ousted  

in view of Section 35 of FEMA, (d) all the High  

Courts  in  India,  are  entertaining  writ  petitions  

challenging  an  interim  order  passed  by  such  

Tribunals.

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16.In our judgment, none of the answers given by the  

learned  counsel  are  tenable  for  the  reasons  

discussed below.

17.FEMA is a complete Code in itself. The long title  

of FEMA would indicate that the same is an “Act to  

consolidate and amend the law relating to foreign  

exchange  with  the  objective  of  facilitating  

external trade and payments and for promoting the  

orderly  development  and  maintenance  of  foreign  

exchange market in India”.  

18.The Act has seven Chapters and 49 Sections and out  

of which, Chapter V, which deals with adjudication  

and Appeal, contains detailed provisions starting  

from Sections 16 to 35, thus spanning 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.

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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 a further period not  exceeding sixty days.

Explanation.-In  this  section  “High  Court” means – (a) the  High  Court  within  the  jurisdiction of which the aggrieved party  ordinarily resides or carries on business  or personally works for gain; and (b) where the Central Government is the  aggrieved party, the High Court within the  jurisdiction of which the respondent, or  in a case where there are more than one  respondent,  any  of  the  respondents,  

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ordinarily resides or carries on business  or personally works for gain.

21.A  reading  of  Section  35  makes  it  clear  that  

jurisdiction has been clearly conferred on the High  

Court to entertain an appeal within 60 days from  

‘any decision or order of the appellate authority’.  

But such appeal has to be on a question of law.

22.The proviso empowers the High Court to entertain  

such  an  appeal  after  60  days  provided  the  High  

Court is satisfied that the appellant was prevented  

by sufficient cause from appealing earlier.

23.The argument that under Section 35 only appeals  

from final order can be filed has been advanced on  

a  misconception  of  the  clear  provision  of  the  

Section itself. The Section clearly says that from  

‘any decision or order’ of the Appellate Tribunal,  

appeal can be filed to the High Court on a question  

of law.

24.The word ‘any’ in this context would mean ‘all’. We  

are of this opinion in view of the fact that this  

Section confers a right of appeal on any person  

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aggrieved. A right of appeal, it is well settled,  

is a creature of Statute. It is never an inherent  

right,  like  that  of  filing  a  suit.  A  right  of  

filing a suit, unless it is barred by Statute, as  

it is barred here under Section 34 of FEMA, is an  

inherent  right  (See  Section  9  of  the  Civil  

Procedure Code) but a right of appeal is always  

conferred by Statute. While conferring such right  

Statute may impose restrictions, like limitation or  

pre-deposit of penalty or it may limit the area of  

appeal  to  questions  of  law  or  sometime  to  

substantial  questions  of  law.  Whenever  such  

limitations are imposed, they are to be strictly  

followed.  But  in  a  case  where  there  is  no  

limitation on the nature of order or decision to be  

appealed against, as in this case, the right of  

appeal cannot be further curtailed by this Court on  

the  basis  of  an  interpretative  exercise.  Under  

Section 35 of FEMA, the legislature has conferred a  

right of appeal to a person aggrieved from ‘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’.

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25. Justice  Chitty  in  Beckett vs.  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 vs.  Klinger,  1982 (2) AER 737].

27. Justice Bachawat, while in Calcutta High Court, in  

the  case  of  Satyanarain  Biswanath vs.  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  

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Arbitration.  Construing the said rule, the learned  

Judge held that the word ‘any’ in Rule 10 means one  

or more out of several and includes all and while  

doing  so  the  learned  Judge  relied  on  an  old  

decision of the Calcutta High court in the case of  

Jokhiram  Kaya vs.  Ganshamdas  Kedarnath,  AIR  1921  Cal 244 at page 246.  This Court is in respectful  

agreement with the aforesaid view of the learned  

Judge.   

28. In Black’s Law Dictionary the word ‘any’ has been  

explained as having a ‘diversity of meaning’ and  

may be “employed to indicate all and every as well  

as some or one and its meaning in a given Statute  

depends  upon  the  context  and  subject  matter  of  

Statute”. The aforesaid meaning given to the word  

‘any’ has been accepted by this Court in  Lucknow  Development Authority vs. M.K. Gupta [(AIR) 1994 SC  787].  While construing the expression “service of  

any  description”  under  Section  2(o)  of  Consumer  

Protection  Act,  1986  this  Court  held  that  the  

meaning of the word ‘any’ depends upon the context  

and the subject matter of the Statute and held that  

the word ‘any’ in Section 2(o) has been used in  

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wider sense extending from one to all (para 4 at  

page 793 of the report). In the instant case also  

when a right is conferred on a person aggrieved to  

file appeal from ‘any’ order or decision of the  

Tribunal, there is no reason, in the absence of a  

contrary statutory intent, to give it a restricted  

meaning.  

29.Therefore, in our judgment in Section 35 of FEMA,  

any ‘order’ or ‘decision’ of the Appellate Tribunal  

would  mean  all  decisions  or  orders  of  the  

Appellate Tribunal and all such decisions or orders  

are, subject to limitation, appealable to the High  

Court on a question of law.

30.In a case where right of appeal is limited only  

from  a  final  order  or  judgment  and  not  from  

interlocutory  order,  the  Statute  creating  such  

right makes it clear [See Section 19 of the Family  

Courts Act, 1984] which is set out below:

“(19). Appeal (1) Save as provided in sub-section  

(2) and notwithstanding anything contained  in the Code of Civil Procedure, 1908 (5 of  1908)  or  in  the  Code  of  Criminal  

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Procedure,  1973  (2  of  1974)  or  in  any  other law, an appeal shall lie from every  judgment  or  order,  not  being  an  interlocutory order, of a Family Court to  the High Court both on facts and on law.

(2) No appeal shall lie from a decree  or order passed by the Family Court with  the  consent of  the parties  [or from  an  order passed under 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.

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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 Statute regarding the nature of the  

order from which right of appeal has been conferred  

is clear, no statutory interpretation is warranted  

either to widen or restrict the same.

33. The  argument  that  writ  jurisdiction  of  the  High  

Court under Article 226 of the Constitution is a  

basic  feature  of  the  Constitution  and  cannot  be  

ousted  by  Parliamentary  legislation  is  far  too  

fundamental to be questioned especially after the  

judgment of the Constitution Bench of this Court in  

L. Chandra Kumar vs. Union of India and others - [(1997) 3 SCC 261].  However, that does not answer  the question of maintainability of a writ petition  

which  seeks  to  impugn  an  order  declining  

dispensation  of  pre-deposit  of  penalty  by  the  

Appellate Tribunal.

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34. When  a  statutory  forum  is  created  by  law  for  

redressal of grievance and that too in a fiscal  

Statute, a writ petition should not be entertained  

ignoring the statutory dispensation. In this case  

High  Court  is  a  statutory  forum  of  appeal  on  a  

question of law. That should not be abdicated and  

given a go bye by a litigant for invoking the forum  

of judicial review of the High Court under writ  

jurisdiction. The High Court, with great respect,  

fell into a manifest error by not appreciating the  

aspect of the matter.  It has however dismissed the  

writ petition on the ground of lack of territorial  

jurisdiction.  

35.No  reason  could  be  assigned  by  the  appellant’s  

counsel  to  demonstrate  why  the  appellate  

jurisdiction of the High Court under Section 35 of  

FEMA  does  not  provide  an  efficacious  remedy.  In  

fact there could hardly be any reason since High  

Court itself is the appellate forum.  

36. Reference  may  be  made  to  the  Constitution  Bench  

decision  of  this  Court  rendered  in  Thansingh  Nathmal and others vs. The Superintendent of Taxes  ,    

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Dhubri,  reported in AIR 1964 SC 1419, which was  

also a decision in a fiscal law. Commenting on the  

exercise  of  wide  jurisdiction  of  the  High  Court  

under  Article  226,  subject  to  self  imposed  

limitation, this Court went on to explain:

“The High Court does not therefore act as  a court of appeal against the decision of  a court or tribunal, to correct errors of  fact,  and  does  not  by  assuming  jurisdiction under Article 226 trench upon  an alternative remedy provided by statute  for obtaining relief. Where it is open to  the aggrieved petitioner to move another  tribunal,  or  even  itself  in  another  jurisdiction for obtaining redress 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  vs. 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  

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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  liability  may  be  established  founded upon statute.... But there is a  third class, viz., where a liability not  existing at common law is created by a  statute which at the same time gives a  special  and  particular  remedy  for  enforcing it...the remedy provided by the  statute must be followed, and it is not  competent  to  the  party  to  pursue  the  course applicable to cases of the second  class. The form given by the statute must  be  adopted  and  adhered  to.”   The  rule  laid down in this passage was approved by  the House of Lords in Neville v. London  Express Newspaper Ltd. [1919] AC 368 and  has been reaffirmed by the Privy Council  in  Attorney-General  of  Trinidad  and  Tobago v. Gordon Grant and Co. [1935] AC  532 and Secretary of State v. Mask and Co.  AIR 1940 PC 105. It has also been held to  be equally applicable to enforcement of  rights,  and  has  been  followed  by  this  Court  throughout.  The  High  Court  was  therefore  justified  in  dismissing  the  writ petitions in limine”.

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39. In this case, 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. Again another  

Constitution  Bench  of  this  Court  in  Mafatlal  Industries Ltd. and others vs.  Union of India and  other [(1997) 5 SCC 536], speaking through Justice  B.P.  Jeevan  Reddy,  delivering  the  majority  

judgment,  and  dealing  with  a  case  of  refund  of  

Central Excise Duty held:

“So far as the jurisdiction of the High  Court under Article 226 — or for that  matter,  the  jurisdiction  of  this  Court  under Article 32 — is concerned, it is  obvious that the provisions of the Act  cannot bar and curtail these remedies. It  is, however, equally obvious that while  exercising  the  power  under  Article  226/Article 32, the Court would certainly  take  note  of  the  legislative  intent  manifested in the provisions of the Act  and  would  exercise  their  jurisdiction  consistent  with  the  provisions  of  the  enactment”  (para  77  page  607  of  the  report).

40.In the concluding portion of the judgment it was  

further held:

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“The power under Article 226 is conceived  to  serve  the  ends  of  law  and  not  to  transgress them” [Para 108 (x), p. 635].

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.  

42. Learned  counsel  for  the  respondents  relied  on  a  

judgment  of  this  Court  in  Seth  Chand  Ratan vs.  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  

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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  

jurisdiction to grant relief.

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.

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45. Learned  counsel  for  the  appellant  relied  on  a  

decision of this Court in Monotosh Saha vs. Special  Director, Enforcement Directorate and Anr. – (2008)  12  SCC  359.  That  was  a  decision  entirely  on  

different facts. In that decision Saha preferred an  appeal before the appellate tribunal with a request  

for dispensing with requirement of pre-deposit, but  

the tribunal directed the deposit of 60% of the  

penalty amount before entertaining the appeal. When  

an appeal was preferred before the High Court under  

Section 35 of the FEMA, the same was dismissed by  

the High Court holding that no case for hardship  

was made out either before the tribunal or before  

it. In the background of those facts, this Court  

observed  that  since  pursuant  to  this  Court’s  

interim order Rs.10 lacs have been deposited with  

the  Directorate,  the  appellant  was  directed  to  

furnish further such security as may be stipulated  

by the tribunal and directed that on such deposit  

tribunal is to hear the appeal without requiring  

further deposit.

46. It is obvious from the aforesaid discussion that in  

Monotosh Saha (supra) proper procedure was followed  

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by filing an appeal under Section 35.  On that this  

Court made certain observations. The said decision  

is,  therefore,  not  relevant  to  the  facts  and  

circumstances of the case in hand.

47. Learned counsel for the appellant also relied on a  

decision of this Court in  Kusum Ingots and Alloys  Ltd. vs. Union of India and Anr.  – (2004) 6 SCC  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.

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.

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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.

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51.With  the  aforesaid  direction,  the  appeal  is  

dismissed. The parties are left to bear their own  

costs.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi April 12, 2010

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