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TMI Blog2010 (4) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 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 29-2-2008. 6. On appeal to the Appellate Tribunal under Section 19(2) of the Act, the Tribunal passed the order dated 17-7-2008, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in; 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, 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 aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, 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 v. 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 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 'deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution 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 v. Union of India and Others - [(1997) 3 SCC 2 61]. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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". 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 v. Union of India and Other [(1997) 5 SCC 536], speaking through Justice B.P. Jee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 45. Learned counsel for the appellant relied on a decision of this Court in Monotosh Saha v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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