RAJ KUMAR SHIVHAREversusASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT & ANOTHER

                         [2010] 4 S.C.R. 608


A                     RAJ KUMAR SHIVHARE
                                   v.
           ASSISTANT DIRECTOR, DIRECTORATE OF
                 ENFORCEMENT & ANOTHER
                (Civil Appeal No. 3221 of 2010)
B
                           APRIL 12, 2010
       [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

       Constitution of India, 1950 - Article 226 - Writ petition -
C Against interim order of Tribunal in a case under FEMA -
  Maintainability of - Held: In view of s. 35 which confers
  appellate jurisdiction on High Court, writ petition is not
  maintainable - When a statutory forum is created by law for
  redressal of grievance, writ petition not maintainable ignoring
D statutory dispensation - Right of appeal, being a creature of
  a statute, its nature, ambit and width has to be determined
  from the statute itself - No statutory interpretation is warranted
  to widen or restrict it - Foreign Exchange Management Act;
  1999, s. 35 - Interpretation of Statutes.
E
        Words and Phrases :
        'Any' - Meaning of, in the context of s. 35 of Foreign
    Exchange Management Act, 1999.
F      Pursuant to a notice uls. 3(c) of Foreign Exchange
  Management Act, 1999 (FEMA), penalty was imposed on
  the appellant-accused, and the confiscated money was
  disposed of according to Section 13(2). In appeal, the
  Appellate Tribunal by interim order refused to dispense
G with the pre-deposit of penalty by the appellant. Against
  the order of the Tribunal, appellant filed writ petition. High
  Court rejected the petition, holding that it did not have the
  territorial jurisdiction to decide the matter. Hence the
  appeal.
H                                608
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE 609
             OF ENFORTCEMENT
    Dismissing the appeal, the Court                             A
     HELD: 1. When a statutory forum is created by law
f9r redressal of grievance and that too in a fiscal statute,
a Writ Petition should not be entertained ignoring the
statutory dispensation. In the instant case, High Court is 8
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, fell into a manifest
error by not appreciating the aspect of the matter. It has
however dismissed the Writ Petition on the ground of C
lack of territorial jurisdiction. 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 u/s. 35 of Foreign
Exchange Management Act, 1999 subject to the D
limitations contained therein. A writ petition in the facts
of this case is therefore clearly not maintainable. [Paras
34 and 39] [621-B-C; 623-B·C]
     Thansingh Nathmal and Ors. vs. The Superintendent of E
Taxes, Dhubri AIR 1964 SC 1419; Mafatlal Industries Ltd. and
Ors. vs. Uniori of India and Ors. (1997) 5 SCC 536, followed.
    Titaghur Paper Mills Co. Ltd. and Anr. vs. State of Orissa
and Anr. AIR 1983 SC 603, relied on.
                                                              F
     Seth Chand Ratan vs. Pandit Durga Prasad (D) By Lrs.
and Ors. (2003) 5 SCC 399; Monotosh Saha vs. Special
Director, Enforcement Directorate and Anr. (2008) 12 SCC
359; Kusum Ingots and Alloys Ltd. vs. Union of India and Anr.
(2004) 6 SCC 254; Ambica Industries vs. ·Commissioner of G
Central Excise 2007" (6) SCC 769, distinguished.
   L. Chandra Kumar vs. Union of India and Ors. (1997) 3
sec 261, referred to.
     2. The right of appeal, being always a creature of a H
    610     SUPREME COURT REPORTS                 [2010] 4 S.C.R.

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
B same. [Para 32] [620-F-G]
       3. A reading of Section 35 of FEMA makes it clear that
  jurisdiction has been clearly conferred on the High Court
  to entertain an appeal within 60 days from 'any decision
C or order ()f the appellate authority'. But such appeal has
  to be on a question of law. 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. It is
  not correct to say that u/s. 35 only appeals from final order
D can be filed. 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. [Paras 21,
  22 and 23] [671 ·B·E]
E       4. The word 'any' in the context of s. 35 would mean
  'all'. This Section confers a right of appeal on any person
  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,
F as it is barred here u/s. 34 of FEMA, is an inherent right
  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
G 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 Supreme Court
  on the basis of an interpretative exercise. Under Section
H 35 of FEMA, the legislature has conferred a right of
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE           611
             OF ENFORTCEMENT
appeal to a person aggrieved from 'any' 'order' or A
'decision' of the Appellate Tribunal. Of course such
appeal wlll have to be on a question of law. In this
context the word 'any' would mean 'all'. [Para 24) [617-E-
H; 618-A]
                                                           B
    Lucknow Development Authority vs. M.K. Gupta (AIR)
1994 SC 787, relied on.

    Satyanarain Biswanath vs. Harakchand Rupchand AIR
1955 Calcutta 225; Jokhiram Kaya vs. Ganshamdas
Kedamath AIR 1921 Cal 244, referred to.                         C

    Beckett vs. Sutton 51 Law Journal 1882 Chancery
Division 432; Ellerine Bros. (Pty) Ltd. and Anr. vs. Klinger,
1982 (2) AER 737, referred to.

    Black's Law Dictionary, referred to.                        D

    5. The Court gives 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.
[Para 50) [626-B]                                               E
                     Case Law Reference:
    51 Law Journal 1882 Chancery
    Division 432              Referred to.         Para 25      F
    1982 (2) AER 737          Referred to.         Para 26
    AIR 1955 Calcutta 225 Referred to.             Para 27
    AIR 1921 Cal 244          Referred to.         Para 27
                                                                G
    (AIR) 1994 SC 787         Relied on.           Para 28
    (1997) 3 sec 261          Referred to.         Para 33
     t..IR 1964 SC 1419       Followed.            Para 36
    AIR 1983 SC 603           Relied on.           Para 38      H
    612       SUPREME COURT REPORTS                    [201 O] 4 S. C.R.

A         1997 (5) sec 536            Followed.               Para 39
          2003 (5) sec 399            Distinguished.          Para 42
          (2008) 12 sec 359           Distinguished.          Para 45

B         (2004) 6 sec 254            Distinguished.          Para 47
          2001 (6) sec 769            Distinguished.          Para 48
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3221 of 2010.
c       From the Judgment & Order dated 24.9.2008 of the High
    Court of Delhi at New Delhi in W.P. No. 6527 of 2008.
          Vijay Hansaria, Sneha Kalita, R.K. Sinha and D.K. Sinha
    for the Appellant.
D
          P.P. Malhotra, ASG, Ranjana Narayan and B.K. Prasad
    for the Respondents.
          The Judgment of the Court was delivered by
E         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.
F      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 Court is not concerned. By that order,
  the Tribunal refused to dispense with the pre-deposit of penalty
G 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 th~
          appellant is permitted to deposit full amount of penalty
H         within thirty days from the date of receipt of the order failing
  RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE .613
   OF ENFORCEMENT [ASOK KUMAR GANGULY, J.]
    which the appeal will be dismissed on this ground alone.        A
    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 B
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 C
residence, should not be credited to the account of the Central
Government under Section 13(2) of FEMA, 1999.

    5. As the charges were proved against him, a penalty of
Rs.2 crores was imposed on him and the confiscated money D
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.                         E

    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 F
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
Jhe writ petition on that ground and gave liberty to approach the.
 appropriate High court.
                                                                    G
     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 in Ambica Industries vs.
Commissioner of Central Excise, (2007) (6) SCC 769, on the
interpretation of Section 35 of FEMA.                               H
    614       SUPREME COURT REPORTS                    [2010] 4 S.C.R.


A       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
B
          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 ... "
c        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
D
          "..... 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
E
          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
F         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
G         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
H         of the Delhi High Court to take advantage of the law laid
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE 615
  OF ENFO~CE:MENT [ASOK KUMAR GANGULY, J.]
    down by it which may be contrary to the judgments of the         A
    High Court of Bombay".

      12. High Court also relied on the Explanation (a) to Section
35 of FEMA, which states that "High Courr, to which an appeal
from an order of the Appellate Tribunal under Section 35 of the
                                                                     8
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".

     13. Though High Court dismissed the writ petition on the
issue of territorial jurisdiction, it missed a rather fundamental    C
issue which is discussed hereunder.

    14. At the commencement of tne 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     D
of FEMA.

     15. The Learned Couhsel 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          E
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.                                                   F

     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 G
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".
                                                              H
    616       SUPREME COURT REPORTS                     [2010) 4 S.C.R.


A        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
B   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
C   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
D   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 Cowt.-Any person aggrieved
          by any decision or order of the Appellate Tribunal may file
E
          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:

F                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.

G               ExplanationAn 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

H         (b) where the Central Government is the aggrieved party,
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE                    617
  OF ENFORCEMENT [ASOK KUMAR GANGULY, J.]

    the High Court within the jurisdiction of which the                   A
    respondent, or in a case where there are more than one
    respondent, any of the respondents, ordinarily resides or
    carries on business or personally works for gain.

     21. A reading of Section 35 makes it clear that jurisdiction B
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            C
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            o
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         E
of this opinion in view of the fact that this Section confers a right
of appeal on any person 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             F
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           G
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           H
    618       SUPREME COURT REPORTS                [2010] 4 S.C.R.


A 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'.

B       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:-                                     l



          ".. the words of the section are as wide as possible, and
c         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'
D 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
  El/erine Bros (Pty) Ltd and another vs. Klinger, 1982 (2) AER
E 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
F Tribunal of 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
G 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
H "employed to indicate all and every as well as some or one and
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE               619
  OF ENFORCEMENT [ASOK KUMAR GANGULY, J.]
its meaning in a given Statute depends upon the context and         A
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 7S7].
While construing the expression "service of any description"
Under Section 2(o) of Consumer Protection Act, 1986 this Court      B
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 wider 'sense
extending from one to all (para 4 at page 793 of the report). In
ths instant case also when a right is conferred on a person         C
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 D
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    E
final order or judgment and not from interlocutory order, the
Statute creating such right makes it dear [See Section 19 of
the Family Courts Act, 1984) which is set out below:·

     "(19). Appeal
                                                                    F
            (1) Save as provided in sub-section (2) and
     notwithstanding anything contained in the Code of Civil
     Procedure, 1908, (5 of 1908) t>r in the Code of Criminal
     Procedure, 1973 (2of1974) or in any other law, an appeal
     shall lie from every judgment or order, not being an . G
     interlocutory order, of a Family Court to the High Court both
     on facts ~nd 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   H
    620       SUPREME COURT REPORTS                [2010] 4 S.C.R.

A         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
B         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
c         judgment or order of a Family Court.]

                                              (Emphasis supplied)

         31. Similarly, under Section 104 of the Code of Civil
  Procedure read with Order XLlll Rule 1 thereof, it has been
D 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
E 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
F 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.
G      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
H Kumar vs. Union of India and others -[(1997) 3 SCC 261].
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE               621
  OF ENFORCEMENT (ASOK KUMAR GANGULY, J.]

However, that does not answer the question of maintainability A
of a writ petition which seeks to impugn an order declining
dispensation of pre-deposit of penalty by the Appellate Tribunal.

     34. When a statutory forum is created by law for redressal
of grievance and that too in a fiscal Statute, a writ petition 8
should not be entertained ignoring the statutory dispensation.
In this case High C9urt 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 C
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        D
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 Bencn             E
decision of this Court rendered in Thansingh Nathma/ and
others vs. The Superintendent of Taxes, 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   F
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 G
     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 H
        622          SUPREME COURT REPORTS                   [2010] 4 S.C.R.


    A            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)
    B            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
    c 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:
    0            "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.
    E            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
    F         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
    G         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.
    H
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE                  623
  OF ENFORCEMENT [ASOK KUMAR GANGULY, J.]

    [1935) AC 532 and Secretary of State v. Mask and Co.              A
    AIR 1940 PC 105. It has also been held to be equally
    applicable to enforcement of rights, and has been followed
    by this Co1;1rt throughout. The High Court was therefore
    justified in dismissing the writ petitions in limine".
                                                                        B
      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 C
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:
                                                                        D
      "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 E
       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).                                                   F

     40. In the concluding portion of the judgment it was further
held:

     'The power under Article 226 is conceived to serve the
     ends of law and not to transgress them" [Para 108 (x), p.         G
     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      H
    624      SUPREME COURT REPORTS                   [2010) 4 S.C.R.


A   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
8
  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
C 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
D 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.

E       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
F 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
G 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.

      45. Learned counsel for the appellant relied on a decision
H of this Court in Monotosh Saha vs. Special Director,
 RAJ KUMAR SHIVHARE v. ASST. DIR. DIRECTORATE 625
  OF ENFORCEMENT [ASOK KUMAR GANGULY, J.]

Enforcement Directorate and Anr. - (2008) 12 SCC 359. That A
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 B.
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 in,terim order Rs.10 lacs have, been c
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 D
Monotosh Saha (supra) proper procedure was followed 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.
                                                                   E
      47. Learned ~ounsel 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 F
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 Industrias (supra) is also on G
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.
                                                                   H
    626      SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A        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.
B
        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
C 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 246 of
  the Constitution before the Delhi High Court and then its appeal
D before this Court.

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

    K.K.T.                                       Appeal dismissed.