2018 (4) TMI 162 - HC - FEMA

Order passed by an officer coram non judice - gross violation of the principles of natural justice. These orders have been passed without complying with the statutory requirements - Held that - Though a writ of certiorari can be issued by this court despite the presence of alternate and equally efficacious remedy, that is not a prohibition or rule, but a matter of prudence, still, whether to issue such a writ or not depends upon the facts and circumstances of each case. No general rule can be laid down. Eventually, this court s jurisdiction under Article 226 of the Constitution of India is extraordinary, discretionary and equitable. One who invokes this jurisdiction must approach this court with clean hands. Once we have noted that the petitioner never disputed the power of the authority to issue the show cause notice, the competence to adjudicate it and pass a final order thereon and that the notice refers to both enactments, namely, FERA and FEMA, all the more we are not inclined to grant any relief in writ jurisdiction.

Issues Involved:
1. Validity of the show cause notice and adjudication orders.
2. Jurisdiction and competence of the adjudicating authority.
3. Compliance with statutory requirements under FERA and FEMA.
4. Availability of an alternate and equally efficacious remedy.

Detailed Analysis:

1. Validity of the Show Cause Notice and Adjudication Orders:
The petitioner challenged the show cause notice dated 16th May 2002, and the adjudication orders dated 19th October 2004 and 29th March 2014, requesting they be declared void ab initio. The argument was that these orders were issued by an officer coram non judice and in violation of the principles of natural justice without adhering to statutory requirements. The court noted that the petitioner had initially subjected itself to the adjudication process and had not raised the issue of jurisdiction before the appellate tribunal. The tribunal had quashed the initial order and directed a de-novo consideration, which led to the impugned order dated 29th March 2014.

2. Jurisdiction and Competence of the Adjudicating Authority:
The petitioner contended that the adjudicating authority lacked jurisdiction as there was no complainant as mandated by section 16(3) of FEMA. The adjudicating authority, however, noted that the petitioner had not raised this issue during the initial adjudication or before the appellate tribunal. The court observed that the petitioner had voluntarily submitted to the jurisdiction of the adjudicating authority by participating in the proceedings and raising arguments on merits. The court concluded that the jurisdictional challenge was a tactic to delay the adjudication process.

3. Compliance with Statutory Requirements under FERA and FEMA:
The petitioner argued that the show cause notice lacked material evidence to support the alleged violation of section 8(3) of FERA and that the adjudication should have been conducted under FEMA, which has specific provisions like sections 13 and 16(3). The adjudicating authority held that the petitioner failed to submit documentary evidence of import as required under FERA and FEMA. The court noted that the petitioner had been given multiple opportunities to present evidence but failed to do so. The adjudicating authority relied on the available material, including confirmation from the petitioner's authorized dealer, to conclude that the petitioner had not complied with the statutory requirements.

4. Availability of an Alternate and Equally Efficacious Remedy:
The respondents argued that the petitioner had an alternate remedy of appeal before the appellate tribunal, which provided sufficient opportunity to challenge the adjudication orders. The court agreed, noting that the petitioner had already availed of the appellate remedy once and had not raised the jurisdictional issue at that time. The court emphasized that the writ jurisdiction under Article 226 of the Constitution is extraordinary, discretionary, and equitable, and should be invoked with clean hands. Given the petitioner's conduct and the availability of an alternate remedy, the court refused to entertain the writ petition.

Conclusion:
The court dismissed the writ petition, holding that the petitioner had not raised the jurisdictional issue at the earliest opportunity and had voluntarily submitted to the adjudication process. The court found no merit in the petitioner's arguments and emphasized the availability of an alternate remedy. The petition was dismissed without any order as to costs.

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