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

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

A writ petition under Article 226 is not maintainable against an order of the Tribunal under FEMA when a statutory remedy of appeal exists under Section 35 of FEMA; the statutory remedy must be exhausted unless exceptions apply, none of which are present in this case.

Parties
Appellant: Raj Kumar Shivhare; Respondent: Assistant Director, Directorate of Enforcement & Another
Jurisdiction
India
Judgment Date
12 April 2010
Procedural Posture
Civil Appeal / Appeal From High Court Decision in Writ Petition
Outcome
Appeal dismissed
Legal Topics
Maintainability of Writ Petition, Statutory Remedies, Foreign Exchange Management Act
Constitutional Law Financial Law Maintainability of Writ Petition Statutory Remedies Foreign Exchange Management Act

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Parties

Raj Kumar Shivhare

Appellant

Assistant Director, Directorate of Enforcement & Another

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Decision in Writ Petition

Legal Issues

  1. 1 Whether a writ petition under Article 226 is maintainable against an interim order of the Appellate Tribunal under FEMA
  2. 2 Interpretation of Section 35 of FEMA regarding appeals to High Court

Ratio Decidendi

A writ petition under Article 226 is not maintainable against an order of the Tribunal under FEMA when a statutory remedy of appeal exists under Section 35 of FEMA; the statutory remedy must be exhausted unless exceptions apply, none of which are present in this case.

Court Disposition

Appeal dismissed

Orders

  • Liberty granted to the appellant to file an appeal before an appropriate High Court within the meaning of Explanation to Section 35 of FEMA within thirty days.
  • Appellate forum to consider limitation sympathetically, considering Section 14 of the Limitation Act and bona fide pursuit of remedies.