RAJ KUMAR SHIVHARE versus ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT & ANOTHER

Citation: [2010] 4 S.C.R. 608 · Decided: 12-04-2010 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2010] 4 S.C.R. 608 
RAJ KUMAR SHIVHARE 
v. 
ASSISTANT DIRECTOR, DIRECTORATE OF 
ENFORCEMENT & ANOTHER 
(Civil Appeal No. 3221 of 2010) 
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; 
E 
1999, s. 35 - Interpretation of Statutes. 
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 
HELD: 1. When a statutory forum is created by law 
f9r redressal of grievance and that too in a fiscal statute, 
A 
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' i

Excerpt shown. Read the full judgment & AI analysis in Lexace.